Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association
Santa Barbara Official Publication of the Santa Barbara County Bar Association December 2011 • Issue 471 Lawyer Southern California Institute of Law Judge Kenneth Starr US Solicitor General 2007 Anthony Capozzi State Bar President Member, Judicial Performance Commission 2004 Celebrating 25 Years of Legal Education in Santa Barbara & Ventura Counties Thanks To Our Commencement Speakers For Encouraging The Finest Traditions of the Legal Profession Hon. Bill Lockyer CA Attorney General 2003 Justice Paul Turner Presiding Justice CA Court of Appeal Los Angeles 1996 Justice Ming Chin CA Supreme Court 2006 Justice Norman L. Epstein Presiding Justice CA Court of Appeal Los Angeles 2010 Hon. Tani Cantil-Sakauye Chief Justice CA Supreme Court 2011 Prince Zeid Ra'ad Al-Hussein President, Governing Body United Nations International Criminal Court 2008 2 Santa Barbara Lawyer www.lawdegree.com Justice Arthur Gilbert Presiding Justice CA Court of Appeal-Ventura 2001 December 2011 3 Santa Barbara County Bar Association www.sblaw.org A Publication of the Santa Barbara County Bar Association 2011 Officers and Directors Mack Staton President Mullen & Hanzell LLP 112 East Victoria Street Santa Barbara, CA 93101 T: 966-1501; F: 966-9204 [email protected] Catherine Swysen President Elect Sanger & Swysen 125 De La Guerra Street, Ste. 102 Santa Barbara, CA 93101 T: 962-4887; F: 963-7311 [email protected] Donna Lewis Secretary Attorney at Law 789 North Ontare Road Santa Barbara, CA 93105 T: 682-4090; F: 682-4290 [email protected] Scott Campbell Chief Financial Officer Rogers, Sheffield & Campbell, LLP 427 East Carrillo Street Santa Barbara, CA 93121-2257 T: 963-9721; F: 966-3715 [email protected] Lynn Goebel Past President Special Projects Attorney At Law 148 East Carrillo Street, Ste. A Santa Barbara, CA 93101 T: 879-7513; F: 879-4006 [email protected] Matthew Clarke Santa Barbara Lawyer Christman, Kelley & Clarke 831 State Street Santa Barbara, CA 93101 T: 884-9922; F: 866-611-9852 [email protected] William Duval Events Committee Bench & Bar Relations Attorney At Law 1114 State Street, Ste. 240 Santa Barbara, CA 93101 T: 963-9641; F: 963-4071 Rebecca Eggeman Events Committee Attorney at Law 315 Meigs Road, Ste. A-378 Santa Barbara, CA 93109 T: 626-0026; F: 626-0027 [email protected] Herb Fox Bench & Bar Relations Law Office of Herb Fox 15 W. Carrillo Street, Ste. 211 Santa Barbara, CA 93101 T: 899-4777; F: 899-2121 [email protected] Jennifer Hanrahan Bench & Bar Attorney At Law 657 Del Parque Drive, Ste. E Santa Barbara, CA 93103 T: 966-6441; F: 966-6407 [email protected] Preston Marx MCLE Law Office of Preston A Marx, III 4299 Carpinteria Ave, Ste. 100 Carpinteria, CA 93013 T: 566-9500; F: 684-3975 [email protected] Casey Nelson MCLE Special Projects 27 W Anapamu Street, #161 Santa Barbara, CA 93101 T: 637-3492 [email protected] Santa Barbara Lawyer Brandi Redman Bench & Bar Awards & Board Development Attorney & Counselor at Law 1021 Laguna Street, Apt. 8 Santa Barbara, CA 93101 T: 252-8418 [email protected] Angela Roach Liaison Awards & Board Development Employee & Labor Relations University of California Santa Barbara 3101 SAASB Santa Barbara, CA 93106-8645 (805) 893-7302 telephone [email protected] Kelly Scott MCLE Santa Barbara Lawyer County Counsel Of Santa Barbara 105 E Anapamu Street, Rm 201 Santa Barbara, CA 93101 T: 568-2950; F: 568-2982 [email protected] Carl straub, jr. Vice President & General Counsel Flir Commercial Systems 70 Castilian Dr. Goleta, CA 93117 T: 690-7190 [email protected] ©2011 Santa Barbara County Bar Association CONTRIBUTING WRITERS Christine Chambers Laura Dewey Dibby Allan Green David C. Peterson Angela D. Roach Kelly D. Scott Robert Sanger EDITOR Matt Clarke ASSISTANT EDITORS Lida Sideris Kelly Scott MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PRINT PRODUCTION Wilson Printing DESIGN Baushke Graphic Arts Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA 93101 T: 569-5511; F: 569-2888 [email protected] Mission Statement Santa Barbara County Bar Association The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. 4 Santa Barbara Lawyer Submit all EDITORIAL matter to [email protected] with “submissIon” in the email subject line. Submit all MOTIONS matter to Michael Pasternak at [email protected]. Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA 93101 phone 569-5511, fax 569-2888 Classifieds can be emailed to: [email protected] Santa Barbara Official Publication of the Santa Barbara County Bar Association December 2011 • Issue 471 Lawyer Articles Sections 7 What It Means to Be a Lawyer, By David C. Peterson 24 Motions 8 2012 Changes to Property Tax Reporting Requirements for Real Property, By Dibby Allan Green 26 Verdicts & Decisions 10 ICC Prosecutor Opens Investigation into Ivory Coast 30 Calendar Election Violence, By Christine Chambers 12 Restorative Court Creates Permanent Change, By Angela D. Roach 14 The Supreme Court Denies Compensation To Victim Of Admitted Prosecutorial Misconduct: A Review of Connick v. Thompson, By Kelly D. Scott 28 Classifieds About the Cover Photo by Bill Donovan and Petra Cortright, who is an Internet artist currently living and working in Santa Barbara, California. www.petracortright.com. 16 California Women Lawyers’ Annual Dinner 2011, By Laura Dewey 20 Secrecy, Presumption of Government Records Regularity, and the End of Law as We Know It, By Robert Sanger Katherine Hause, Danielle DeSmeth, Hon. George Eskin, Hannah-Beth Jackson at the California Women Lawyers’ Annual Dinner. See story page 16. December 2011 5 McIvers&Slater_7.5x4.5_2011 5/4/11 3:52 PM Page 2 McIvers & Slater Mediation and Arbitration Kevin Thomas McIvers [email protected] Hon. James M. Slater Judge of the Superior Court, Ret. [email protected] Excellence in Dispute Resolution Business Disputes Real Estate Elder Abuse Professional Liability Medical Malpractice Insurance & Bad Faith Employment & Wrongful Termination Construction Contract & Defect Personal Injury & Wrongful Death (805) 897-3843 www.McIversandSlater.com Not in a position to provide service? Conflict of interest? Out of your practice area? Send the client to Lawyer Referral Service • • • • • • • • • • • • • • • • 805.569.9400 Santa Barbara County’s ONLY State Bar Certified Lawyer Referral Service A Public Service of the Santa Barbara County Bar Association 6 Santa Barbara Lawyer Legal News What It Means to Be a Lawyer By David C. Peterson C elebrate being a lawyer. Lawyers are part of the most important aspects of society. The Constitution would be powerless without lawyers. Order is maintained and chaos avoided by the laws of society. But the laws without lawyers can do nothing. Lawyers bring laws to life. They are also the force behind removing laws that violate the Constitution. Lawyers help refine the law through cases they pursue on behalf of their clients. The public relies on them to protect their rights, whether in civil or criminal courts. Giant companies and individuals who do wrong are brought to “justice” through lawyers. Criminals and other wrongdoers would reign and control, especially those with great resources, if lawyers were not there to bring them before the court and have them face their “peers.” Our justice system is alive because of lawyers. Lawyers have the power to do good. They also are in positions to do harm. When this occurs, the State Bar Association and lawyers take action to protect the clients. Bad lawyers are brought to justice through actions of lawyers and the justice system. In a speech given by former Chief Justice Ronald George at U.C. Berkeley in June of this year, he epitomized what it is to be a part of the justice system. He described being a son of poor immigrants who engendered in him a sense of service. He saw his law school experience, first at Princeton and then at Stanford, as preparation to be of service. He selected the law as he perceived this as the best path to his goal. At a young age, his dedication to being of service led to an appointment to the bench and eventually to the Supreme Court. He exemplified the practice of law and the carrying out of justice. He said there were times during which he had to make difficult choices and though he struggled, he knew he had to do what was right to serve society and the rule of law. Abraham Lincoln is famous for several reasons, but primarily for his passion for the law and justice. He also epitomized what one should be as a lawyer. Examining his history before becoming president, nothing he did would December 2011 have aroused others to criticize him in the manner that lawyers are criticized today. He would not have been accused of contributing to the perception that we are a “litigious society.” He was certainly no weakling when it came to taking on the most difficult challenges and meeting them head on with the incredible power of truth, integrity, and serving justice. On the one hand he said: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” On the other hand, he took on some of the most powerful and dangerous segments of society in order to protect the rights of the weakest, knowing that justice for them had to come in order to preserve the Constitution and rights of all members of society. In this regard, Lincoln said: “This is essentially a People’s contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men—to lift artificial weights from all shoulders—to clear the paths of laudable pursuit for all—to afford all, an unfettered start, and a fair chance, in the race of life.” (July 4, 1861, Message to Congress.) The Civil Rights laws passed under President Johnson were enforced by courageous lawyers who did and continue to do so, as Lincoln, for the same purposes. The public needs lawyers for nearly all important aspects of life, from drafting wills and trusts, helping parties with property matters, protecting interests in transactions, pursuing legal rights and remedies, adoptions, navigating the family law arena and so on. The list is endless. Whether encouraging and assisting clients to settle, pursuing or defending their rights, or protecting their interests in several ways, lawyers are being of service. So, we should celebrate that we serve such an important role in society. David C. Peterson is a local mediator. For comments or information, he may be reached at (805) 441-5884 or davidcpeterson@ charter.net Edward Jones ranked “Highest in Investor Satisfaction with Full Service Brokerage Firms, Two Years in a Row” Visit jdpower.com Daniel J De Meyer Financial Advisor . 125 E De La Guerra St Ste 101 Santa Barbara, CA 93101 805-564-0011 7 www.edwardjones.com Member SIPC Legal News 2012 Changes to Property Tax Reporting Requirements for Real Property By Dibby Allan Green L ast month’s article, “2012 Changes to Property Tax Reporting Requirements for Legal Entities,” examined transfer of ownership interests in legal entities in light of the modifications to the reporting and penalty scheme made by SB 507, now chaptered and effective January 1, 2012. This article will summarize the reporting requirements and penalties, as they relate to transfers of interests in real property, as modified by SB 507. Reporting Requirements The reporting requirements apply to transfers of interests in real property which constitutes a change in ownership (CIO) of the property (Revenue and Taxation Code §480; all section references herein refer to this Code). A CIO generally means when the prior owner no longer continues to own the property (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298), and specifically means a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest (§60). When individuals, trusts, estates, and legal entities transfer real estate, whether or not any deed or other instrument is recorded (e.g., upon change of a beneficiary under a trust), the transferee has the duty to report a change in ownership to the Assessor within ninety days for transfers after January 1, 2012, or forty-five days for transfers prior thereto, and also to respond to a request of the Assessor for a Change in Ownership Statement within the same time period, running from the postmark date of mailing of the request (§§480(c), 482(a), both as amended by SB 507). However, for a transfer occurring upon a death, the trustee (if property is held in trust) or the transferee must report within 150 days of death; or if there is a probate, the personal representative must report prior to filing the inventory and appraisement (§§480(b), (c) and (e)), although a response to a request from the Assessor is still ninety or forty-five days, as set forth above (§480(c) as modified by SB 507). For recorded instruments, the reporting requirement is satisfied by a completed Preliminary Change in Ownership 8 Report (PCOR) accompanying the instrument at the time of recording (§480.3). The PCOR should be completed with care – it is the document where sufficient facts of the transfer are to be disclosed to the Assessor in order to satisfy the reporting requirements. As such, it is also the place to set forth reasons why the transfer is not a CIO, if it is not. If not reported on a PCOR accompanying a recorded instrument, the deadline for filing a Change in Ownership Statement (or supplemental information requested by the Assessor) is met by the postmark date or the date certified by a bona fide private courier service on the envelope containing the statement (§480(g)). (Note that for state assessed properties, such as utilities, the request will come from the Board of Equalization [BOE] and be filed with BOE, instead of the Assessor.) The statutory reporting requirements do not require any statement of legal analysis as to whether a transfer is or is not a CIO; they only require reporting of sufficient facts of the transfer for the Assessor to make such determination. In other words, timely reporting (including protectively) of sufficient facts of the transfer will alleviate the risk of reporting penalties, whether or not a CIO actually has occurred. Where facts are insufficiently known by the reporting deadline (e.g., a trust settlor’s death where the sub-trust funding cannot be determined until the estate tax return is completed), the reporting requirement can be met by timely reporting all facts then known and later supplementing the statement once the remaining facts are determined. Possible Penalties Unlike transfer of interest in legal entities, there are no automatic, mandatory penalties for failure to timely file a PCOR or Change in Ownership Statement. However, when the Assessor requests a Change in Ownership Statement be filed, failure to respond timely can mean a penalty which is the greater of (a) $100, or (b) 10% of the taxes applicable to the new base year value, but not to exceed $20,000 for transfers occurring on January 1, 2012, and following, on property not eligible for the homeowners’ exemption (that is, everything except a person’s primary residence), or $5,000 for properties eligible for the homeowners’ exemption, if such failures to file are not willful; however, both of these penalty caps are limited to $2,500 for transferring occurring prior to January 1, 2012. (§§480(c), 482(a), both as modified by SB 507). What if there is actually no CIO? Failure to respond to an Assessor’s request will result in the $100 penalty amount. What if the transfer is reported, but the Assessor makes a second request for more information? Failure to timely respond can still result in the penalty; however, the penalty Santa Barbara Lawyer Legal News is applied only once per transfer, no matter the number of Assessor’s requests (§482(c)). What if the Assessor deems that the failure to respond to a request was willful? The penalty will be the greater of $100 or 10% of the new base year value without any cap. SB 507 served to increase the penalty amount on properties with a new base year value (that is, the reassessed value due to a CIO) in excess of $2.5 million. At the basic 1% tax rate, the prior $2,500 cap represented 1% tax on $2.5 million value times 10% penalty. The legislation was sponsored by the California Assessor’s Association for the stated purpose of fostering greater taxpayer reporting compliance. Both the Legislature and BOE do not see the penalty increase as revenue neutral and believe what increase may be collected will be offset by greater compliance reducing the number of penalties asserted, particularly due to the extended ninety-day time frame. Taxpayers may request abatement of any reporting penalty within sixty days of notification of the penalty by filing the statement and making application to the Assessment Appeals Board with proof that the failure to file was due to reasonable cause and not willful neglect (§§483(a) and (c)(1), as amended by SB 507 and SB 947). As mentioned last month, there are several other possible consequences for not reporting a transfer which is a CIO, all beyond the scope of this article, but set forth in detail in Green, “Property Tax Reporting Requirements and the Consequences of Not Complying,” California Trusts and Estates Quarterly, Vol. 15, Iss. 3, Fall, 2009, pp. 42-56, available online at www.taxlawsb.com/resources/PptyTax/ PropertyTaxReportingRequirements.pdf. ship Statement or supplemental information from the Assessor seriously and make sure the statement or other response is filed by its due date. 3. Parties to a lease, or tenant in common owners, may want to specify in writing who bears the burden of payment of any increased tax due to a reassessment. 4. Except for probates and trusts, the transferee (e.g., buyer) of a real property transfer has the responsibility to report the transfer, will bear the cost of any reporting penalties which may be levied, and will bear the cost of the increased tax, if a reassessment is triggered. If some other arrangement is desired, the parties to the transaction should specify the arrangement in writing. Dibby Allan Green, ACP (Advanced Certified Paralegal), specializes in property tax matters with Ambrecht & Associates, a tax, family business, estates and trusts specialty law firm. How to Protect Clients from Reporting Penalties 1. Prior to every transfer of interest in real property —that is, every sale or exchange, every lifetime gift or anticipated death, every change in a trust beneficiary, any creation of a lease with a term (including options) of thirty-five years or more, or the termination of such a lease, or the assignment of a leasehold estate where the remaining term is thirty-five years or more (including options), and any other form of transfer of interests in real property—examine the transfer to determine the possible risk of a CIO, and timely report the facts of the transfer if there is any possible risk. Use a PCOR to accompany recorded instruments, but if nothing is recorded, use a Change in Ownership Statement (form on the Assessor’s website). 2. Take every written request for a Change in OwnerDecember 2011 9 International Law ICC Prosecutor Opens Investigation into Ivory Coast Election Violence By Christine Chambers O n October 3rd, Pre-Trial Chamber III of the International Criminal Court authorized Prosecutor Luis Moreno-Ocampo to proceed with an investigation into post-election violence in Côte d’Ivoire. History of the Conflict in Côte d’Ivoire After a brief civil war in 2002, Côte d’Ivoire was split in two—a primarily Muslim north and primarily Christian south. Fighting continued, and the presidential election that was supposed to take place in 2005 continued to be pushed back on account of the violence. After a first round election in October 2010, incumbent President, Laurent Gbagbo, was defeated by former Prime Minister, Alassane Ouattara, in a November 28th run-off election. However, the Constitutional Council declared the results invalid, and both men claimed victory and were sworn in as President in separate ceremonies. The UN and international community supported Ouattara and called for Gbagbo to step down. The country plunged into a civil war that claimed more than 1,500 lives. UN soldiers even entered the fighting, firing on Gbagbo’s home, claiming retaliation for Gbagbo’s forces targeting UN headquarters and foreign civilians. Gbagbo continued to claim the presidency until he was arrested at his home in April by Ouattara loyalists, with support from French troops and UN peacekeepers. Prosecutor’s Allegations The Prosecutor alleges that Gbagbo, a Christian from the south, used the media to paint Ouattara, a Muslim from the north, whose father is from Burkina Faso, as an outsider, and incited his supporters to commit crimes including murder, disappearances, rape, and persecution against perceived Ouattara supporters—immigrants or people of foreign descent. Gbagbo forces also hired and armed foreign mercenaries, and recruited and armed young people to fight for their cause. The Prosecutor has not found evidence to suggest pro-Ouattara forces committed crimes against humanity, but if authorized to investigate, he will investigate such allegations, which have been made by Human Rights 10 Watch and Amnesty International. Pre-Trial Chamber’s Findings The Pre-Trial Chamber concluded that based on the Prosecutor’s evidence, there was reason to believe forces loyal to Gbagbo committed crimes against humanity against civilians they suspected were associated with Ouattara, particularly Muslims, West African immigrants, or persons of West African descent. There is also reason to believe pro-Ouattara forces committed crimes against humanity. The Pre-Trial Chamber requested Moreno-Ocampo return in a month with evidence relating to violence committed between 2002 and the November 28, 2010, run-off election. Legal Basis for ICC Investigation The prosecutor is authorized to initiate investigations into acts of genocide, crimes against humanity, and war crimes under Article 15 of the Rome Statute (the statute establishing the ICC). In this case, the prosecutor’s office began a preliminary investigation and found that there was sufficient evidence to probe into more detail, which may lead to charges being filed. Cases may also proceed when a country refers a situation to the Court (Article 14), or when the Security Council refers a situation to the Court (Article 13), as it did with Libya and Darfur, Sudan. Although Côte d’Ivoire is not a party to the Rome Statute, it recognized the ICC’s authority in April 2003, December 2010, and May 2011. In April 2003, Côte d’Ivoire filed a declaration recognizing the Court’s authority for crimes committed within its jurisdiction as of September 19, 2002. The Court generally only has jurisdiction over crimes committed after a state has become a party1. Therefore, the Court may investigate crimes within Côte d’Ivoire committed on or after September 19, 2002. This marks the seventh case or situation the ICC is investigating. All of the cases are in Africa. Ms. Chambers is an associate with Hager & Dowling. She interned at the International Criminal Tribunal for the Former Yugoslavia in The Hague, Netherlands in 2008, and remains interested in international criminal law. Endnotes 1 I say “generally” because only crimes committed after the state being investigated recognized the ICC’s authority can be considered per Article 14, when a state refers a situation to the Court, or Article 15, when the prosecutor begins his/her own investigation. However, Article 13(b) does provide for Security Council referral, in which case the country may not recognize the ICC (as is the case with the investigation into crimes against humanity in Libya). Santa Barbara Lawyer December 2011 11 Legal News ing costs attributed to homeless recidivism, it became clear that a new approach should be explored. Restorative Court Creates Permanent Change Restorative Court Begins By Angela D. Roach S anta Barbara continues to hotly debate how our community should respond to issues related to homelessness. The debate centers around whether efforts should focus on prevention, intervention, or enforcement. Some argue the best approach is to educate the residents and visitors to adopt behavior to deter unwanted behaviors, such as panhandling. This approach was applied when the Downtown Organization (D.O.) and its Panhandling Education and Alternative Giving Campaign launched the Real Change Not Spare Change Program in April 2010, and with Santa Barbara City’s assistance with affordable housing projects. Others argue that additional funding should be directed to intervention programs to assist those without a home with physical or mental health treatment, food, lodging, and other resources. This usually entails funding for local shelters, detoxification programs, relocation funds, or hotel vouchers. Finally, others argue the best approach is to enact and aggressively enforce municipal and state codes to protect local business and tourism. This approach was adopted in August 2009 when the Santa Barbara City Council amended the Santa Barbara Municipal Code Chapter 9.50 to prohibit “abusive panhandling” entirely within the City and “active panhandling” while on a public bench or other public seating areas in specified parts of the City where homeless populations can be found. The debate becomes more complex when options are decreased with evaporating public funding. Amid dwindling public resources, in August 2010, a report of the Board of Supervisors of Santa Barbara County found that fifteen deaths of homeless in Santa Barbara County occurred during a fifteen month period, and 89% of the deceased had some type of mental illness. In May 2011, the Santa Barbara County Grand Jury issued a report acutely entitled, “Homeless Mentally Ill Indigent Recidivism: The Recycling Is Not Good for the County.” This report found that the mentally ill homeless recycle through local jails, draining limited resources. With dwindling public funds and increas12 A former research attorney, Commissioner Pauline Maxwell helped research alternatives to respond to chronic offenders of minor municipal and state codes often associated with being homeless– including illegal lodging, drunk and disorderly, drunk in public, shopping cart violations, and open container violations. These offenses involve high recidivism rates and as a result, absorb massive court and police resources. Moreover, many violations result in fines that go uncollected. The model employed by other Counties was to provide for alternative sentencing—resolving tickets and fines through community service. However, this approach did not result in lower recidivism rates and was already available in Santa Barbara. After learning about Santa Barbara’s Restorative Policing Unit, Commissioner Maxwell advocated for a court designed along the same lines: promoting permanent change. Restorative Court (RC) is a jail diversionary program for chronic offenders of minor offenses associated with being homeless. RC diverts eligible individuals charged with transient related crimes to the entirely voluntary Court. Commissioner Maxwell states, “This court isn’t in any [political] camp. It’s a win-win situation for everybody, because what we’re doing ends the waste of resources and gets people off the street.” She describes the goals of RC to “enforce the law, reduce recidivism, and reduce costs for the Court and law enforcement.” Additionally, RC runs without any public funding. Restorative Court Process Recognizing the urgent need to get the program off the ground, Commissioner Maxwell decided to “pick a date to begin and work out the kinks as we go.” On March 16, 2011, Commissioner Maxwell presided over the first RC session. Before the first RC session, Judicial Officers presiding over criminal case loads, Police Department, Public Defender, City Attorney, District Attorney and County Jail officials met to identify eligible participants. Eligible participants are usually identified by a restorative policing officer. Violent offenders and people charged with drug sales are not eligible. If an individual is eligible, they can voluntarily elect to participate in RC by signing an “entry contract.” The individual then appears in RC for a case management session to establish a six-month case management plan. The case management plan includes a specific plan to find the individual a home and address other needs, such as obtaining Santa Barbara Lawyer Legal News medical or other benefits. The individual then reports back to RC to assess the progress in accomplishing the identified goals. If the individual “graduates,” their charges are dismissed. To All Contributors of Articles During 2011: Thank you!! Results Although RC is in its infancy, the results are staggering. So far, approximately eighty individuals have participated in RC. Remarkably, approximately 10% of those obtained permanent housing, 10% were provided clean clothing and bussed to family members or friends elsewhere, 30% found transitional housing, and 50% of the participants are still involved and working to find permanent housing. Beyond the statistics, individual stories demonstrate RC’s success. One RC case involved a homeless man who had lived on Santa Barbara’s beaches for thirteen years. He had been arrested 671 times for open container, illegal lodging or other violations. After electing to participate in RC, a case management plan was established for “Tom,” which included temporary housing and a plan to join a friend with a home in Oregon. Ultimately, “Tom” was provided a train ticket, he successfully joined his friend in Oregon and is no longer homeless. Another case involved a twenty-year-old homeless man, “Mike,” who had suffered a brain injury as a child and had an addiction to cocaine. His case management plan was to find housing and provide a father figure to check in with him each day. RC found housing through CASA and with the daily support, “Mike” has not yet re-offended. The Editors of the Santa Barbara Lawyer magazine would like to express tremendous gratitude to everyone in this legal community who has taken the time out of their busy schedules to think about, research and draft articles for our magazine. Lawyers are typically very busy so writing an article involves cutting into free time or time at work. Most of us do not regularly write articles; doing so is outside of our comfort zone. We greatly appreciate this effort and sacrifice. We especially thank those contributors, epitomized by Robert Sanger, who write articles regularly, regardless of their trial schedule or other commitments. Santa Barbara County Bar Association Debtor/Creditor Section Head Opening Future Plans Commissioner Maxwell hopes RC “continues to meet the needs of the participants and the community.” She plans to expand the program and bring on an intern to prepare more detailed court records to monitor specific outcomes. Commissioner Maxwell’s RC, self-described as a “collaborative central clearing house,” has proven to be an effective, innovative approach to a complex problem. If your law practice involves debtors and/or creditors, there is a rare and sought after opening for Head of the Debtor/Creditor Law Section of the 2012 Santa Barbara County Bar Association. In this position, you would have the privilege of putting on continuing legal education in this very active area of law. This is also a strategic position for meeting other practitioners in your area of law. If you are interested, please inquire with Matt Clarke at [email protected], or any other Officer of the Santa Barbara County Bar Association. Don’t wait! *If you are interested in supporting RC, you can make a tax deductible donation to the Mental Health Association of Santa Barbara County, 617 Garden Street, Santa Barbara, CA 93101, and indicate “Restorative Court” in the memorandum. The funds will be used to assist program participants accomplish their case management plans. For example, for train tickets, housing applications, or trade tools. December 2011 13 Legal News The Supreme Court Denies Compensation To Victim Of Admitted Prosecutorial Misconduct: A Review of Connick v. Thompson 1 By Kelly D. Scott I n 1985, John Thompson was charged with murder in New Orleans. Publicity following the murder charge led victims of an unrelated armed robbery to identify Thompson as their attacker. The New Orleans District Attorney then charged Thompson with attempted armed robbery. During the robbery investigation, an investigator took a swatch of fabric stained with the robber’s blood from one of the victim’s pants. That blood was tested and revealed that the perpetrator had blood type B. Thompson’s blood was never tested and the swatch or the crime lab report was never disclosed to Thompson’s attorneys. A jury convicted Thompson of the attempted armed robbery, and a few weeks later prosecutors tried Thompson for the murder. Because of the armed robbery conviction, Thompson chose not to testify in his own defense. He was convicted and sentenced to death. Thompson spent eighteen years in prison—fourteen years on death row. Weeks before his execution in 1999, an investigator for Thompson’s attorneys discovered the crime lab report from the armed robbery investigation in the files of the New Orleans Police Crime Laboratory. Thompson’s blood was tested and he was found to have blood type O, proving that the blood on the swatch was not his. Thompson’s execution was stayed, his robbery conviction vacated, and his murder conviction eventually reversed. Thompson then sued the District Attorney’s Office and won a $14 million civil rights judgment. The basis of that judgment was not that an official policy had caused the evidence suppression. The jury rejected that theory. Nor was the basis that any official policymaker had ordered the suppression. The District Court found no evidence supporting that theory. The judgment depended on a subtler premise. The jury found that the suppression occurred because the District Attorney, Harry F. Connick, Sr., had been “deliberately indifferent” to the need to train his prosecutors about their duty to produce exculpatory evidence, and that the lack of training had caused the nondisclosure in Thompson’s case. The jury’s verdict was affirmed by the Fifth Circuit Court of Appeals. The New Orleans Parish 14 District Attorney appealed to the United States Supreme Court. The Supreme Court granted certiorari to decide whether a district attorney’s office may be held liable under § 1983 for failure to train based on a single Brady violation. On March 29, 2011, the Supreme Court reversed the Fifth Circuit and held that a District Attorney’s Office cannot be held liable for failure to train its prosecutors based on a single Brady violation. S. Kyle Duncan, Appellate Chief for the Louisiana Attorney General’s Office, represented District Attorney Connick and the New Orleans Parish District Attorney’s Office before the United States Supreme Court. I recently had the opportunity to discuss the case with Mr. Duncan: Q: The District Attorney conceded there had been a Brady violation in this case when the prosecutors failed to disclose the crime lab report to Thompson’s counsel. Given that concession, how could the Supreme Court overturn the jury’s verdict that the District Attorney was deliberately indifferent to the need for more Brady training and that deliberate indifference caused the Brady violation? A: The answer has two pieces. First, remember that we’re talking about the liability of a DA’s office, which is a municipality. It’s black letter law that a municipality can’t be liable simply because an employee (or employees) did a bad thing. Instead, a plaintiff must prove that the office itself was “deliberately indifferent” to someone’s rights. That’s a high bar. Second, the only liability theory in play was that the office “failed to train” prosecutors on Brady. The Supreme Court’s seminal decision in City of Canton said that, ordinarily, a plaintiff must prove a “pattern of violations” by employees that should have alerted policymakers to a training problem. In this case, it was admitted that Thompson did not prove any pattern. That means that, under the normal rules of municipal liability, the office was not liable as a matter of law. Q: In Justice Scalia’s concurring opinion, he writes that there was probably no Brady violation at all – except for the bad faith of ADA Deegan – and that could not be attributed to lack of training. Do you agree that one flagrant Brady violation cannot be used to show there was a lack of training? A: The key to Justice Scalia’s point is that Deegan’s violation was not just “flagrant,” but deliberate—he admitted he buried the evidence on purpose! No amount of “training” could have prevented that evil deed. But to answer your question more fully: a really obvious Brady violation could help prove a training claim, but a plaintiff would need Continued on page 19 Santa Barbara Lawyer December 2011 15 Legal Community California Women Lawyers’ Annual Dinner 2011 By Laura Dewey F our hundred fifty attendees gathered at the Long Beach Hyatt on September 15, 2011 for the California Women Lawyers’ Annual Dinner. The attention to detail was apparent as the guests began the evening with a cocktail reception and silent auction, then went into a sumptuous vegetarian repast and exciting program featuring Chief Justice of California, Tani Cantil-Sakauye as Keynote Speaker. The dinner program began with the introduction of CWL President Patricia Sturdevant, whose career as a trial lawyer, consumer advocate, and community activist has been stellar. Ms. Sturdevant founded the DC-based National Association of Consumer Advocates, for which Chief Justice Tani Cantil-Sakauye and Hannah-Beth Jackson Photos by Howard Watkins 16 she became the Executive Director. She later became the Assistant Chief and Staff Counsel to the Enforcement Division of the California Department of Managed Health Care, and she is currently serving as Deputy Commissioner for Policy and Planning for California Insurance Commissioner David Jones. After celebrating the accomplishments of a long list of notable women judges and lawyers, California Women Lawyers then introduced Santa Barbara’s own Hannah-Beth Jackson as the 2011 recipient of the prestigious Fay Stender Award. The late Fay Stender was an advocate for the rights of under-represented groups and individuals. Her tenacity, creativity, and compelling sense of justice were legendary. A founding member of California Women Lawyers, this award is given annually to a feminist attorney who, like Fay Stender, is committed to the representation of women, disadvantaged groups and unpopular causes, and whose courage, zest for life, and demonstrated ability to effect change as a single individual, makes her a role model for women attorneys. Hannah-Beth Jackson was honored with the Fay Stender Award for her work as an attorney and particularly for her accomplishments as a state legislator, where she authored many bills that defended women’s rights and advanced feminist causes. Her legislation continues to aid women with issues from child rearing to spousal support to economic and wage equality. Her stirring acceptance speech brought the crowd to their feet, as she described her commitment to gender equality CWL President-Elect Eliza Rodrigues then introduced a Proclamation of the Judith Soley Lawyer as Citizen Award, honoring the late Fresno family law attorney who, along with her client, was murdered by the client’s estranged husband during a break in trial proceedings. Next, Chief Justice Tani Cantil-Sakaouye gave her keynote address, which was not only inspiring and delivered entirely without notes, but which addressed her strong concerns about the financial health of the justice system after the $350 million reduction to the judiciary’s budget. She also sharply criticized the recent introduction of a bill authored by Assembly Member Charles Calderon, which would have essentially stripped the Judicial Council’s authority over trial courts. She commented that no such bill had been introduced during former Chief Justice Ronald George’s fourteen-year tenure, but that it was brought out on her forty-seventh day in office. Following her address, the Chief Justice swore in the 2011-2012 CWL Board of Governors, which was followed by CWL President Sturdevant’s concluding remarks concerning plans for the upcoming year. Santa Barbara Lawyer Legal Community Gabriela Ferreira, Patricia Sturdevant, Jessica Glynn, Danielle De Smeth Barbara Babcock, Author of Women Lawyer, The Trials of Clara Foltz Hon George Eskin, Hon Sharon MajorsLewis Chief Justice Tani Cantil-Sakauye, CWL President Patricia Sturdevant Laura Dewey, Janet Vining Mitchell, Hannah-Beth Jackson, Danielle De Smeth, Angela Roach, Brandi Redman, Gabriela Ferreira, Amy Dilbeck, Katherine House December 2011 17 Legal Briefs Attention! 2012 Mock Trial Competition Scorers Earn MCLE Credits While Providing Community Service The 2012 Santa Barbara County High School Mock Trial Competition will be conducted at the Courthouse in Santa Barbara on Saturday, February 25th and Saturday, March 3rd . This event is sponsored by the Constitutional Rights Foundation, the Santa Barbara County Superintendant of Schools and the Santa Barbara County Superior Court. Attorney volunteer scorers are needed to help make this a rewarding experience for our local high school students. Interested attorneys are invited to apply now to earn one hour of MCLE credit by participating in a mandatory training program in mid-February. Only those who attend the training program will be permitted to serve as scorers. Mock Trial Program information packets will be distributed upon receipt of application, and scorers will be expected to review the material before the training program. Information will be provided by Josefina Martinez, who may be contacted at [email protected]. Ms. Martinez and Stephanie Robbins, Mock Trial Program Coordinators, will schedule the assignment of scorers for the sixteen trials that will be conducted on February 25th and the six trials on March 3rd. The participating schools this year are, Cabrillo, Cate, Dos Pueblos, Laguna Blanca, Santa Ynez, Santa Barbara, San Marcos, and Santa Maria. Preliminary rounds will be conducted during the morning and afternoon on February 25th. The semi-final round between the top four schools will occur on the morning of March 3rd and the top two schools will compete for the championship that afternoon. - Hon. Brian E. Hill, Presiding Judge - Hon. Art Garcia, Assistant Presiding Judge To schedule a consultation, please call 805-879-7517 15 West Carrillo, Suite 300 • Santa Barbara, CA 93101 info @ elinorreiner.com • www.elinorreiner.com 18 Santa Barbara Lawyer Legal News Scott, continued from page 14 more. The majority decision in Connick categorically says that, to prove a claim that a DA’s office was deliberately indifferent to Brady training, you must show a pattern of similar Brady violations. Only then would a DA be alerted to the fact that prosecutors need specific training on Brady tailored to an ongoing problem in the office. Q: Justice Ginsberg wrote a vigorous dissent in this case and even read it from the bench. It seems that she questioned whether the Brady violation in Thompson’s case was a single incident and implied that perhaps the violation was something between a single incident and a pattern. Do you think the Thompson decision leaves open the possibility that a District Attorney’s Office could be held liable for failure to train for a flagrant Brady violation, as Justice Ginsburg suggests? A: I think it doesn’t. In Canton, the only exception the Court identified to the “pattern” requirement is a situation where the need for training is so “obvious” that failure to provide it automatically amounts to deliberate indifference. The example the Court used was where a police department arms rookie officers, but provides them no instruction on the constitutional limits on using deadly force. Canton was saying, in that unusual situation, you don’t have to wait for a pattern of excessive force incidents before you can find the department deliberately indifferent. The Connick majority, however, went out of its way to hold that an alleged failure to train prosecutors on Brady does not fall into this kind of “obvious” training category. Training lawyers on how to apply the law, in other words, is nothing like training police officers on how to legally arrest people. A: Not at all. Someone in Thompson’s position can try to prove that a policy or custom of a DA’s office on Brady matters caused his injury. Or he can try to prove that a policymaker in the DA’s office made a general decision on Brady matters that harmed him. Or, under the Connick decision, he can try to demonstrate a pattern of similar violations in the office. Thompson, incidentally, attempted all these things at trial, but was unsuccessful. The only theory the jury gave him relief on was the “failure-to-train” theory, which, as the Majority explains, was based on a flawed conception of the Court’s cases. One other thing: someone in Thompson’s position can usually sue under state wrongful conviction statutes and receive some compensation. Thompson has done this, and received compensation from Louisiana. Admittedly, this is not nearly as much as his federal civil rights verdict, but it does show that there are other avenues for compensation. Kelly D. Scott is a Deputy County Counsel for Santa Barbara County and a member of the SBCBA Board. Kyle Duncan and Gordon Cooney will be presenting the landmark case, Connick v. Thompson at the 2012 Santa Barbara Bench & Bar Conference on January 14, 2012. John Thompson currently resides with his wife in New Orleans, Louisiana and is the director of Resurrection After Exoneration, a support group for exonerated inmates. Endnotes 1 Harry F. Connick, District Attorney, et al. v. John Thompson (2011) 131 S.Ct. 1350, 2011 U.S. LEXIS 2594. NOT JUST BLACK &WHITE Q: Is it your position that a District Attorney’s Office can never be held liable for a single incident of a Brady violation? A: That was our position before the Court, and, as you can tell from the oral argument transcript, it drew fire from some of the members. But we didn’t back down because, in our view, that position was compelled by the Court’s municipal liability cases. We were quite pleased to see that position vindicated by the majority opinion. Going forward, to prove that a DA’s office was deliberately indifferent to training its prosecutors on their legal obligations, a plaintiff will have to show a pattern of similar violations by prosecutors. Only then will a DA be on notice that something is wrong with the office’s training program and needs to be fixed. All of us negotiate, but some of us are better than others. Learn the skills needed to make you a better negotiator. Best Practices in Negotiation Saturdays, 9am-4pm, March 24 & 31 Winter quarter begins Jan. 9. UCSANTABARBARA EXTENSION Q: Doesn’t that position leave people like John Thompson— who, after all, suffered a horrible injustice—with no remedy? December 2011 805.893.4200 • EXTENSION.UCSB.EDU WI2012-20 SB LAWYER 3.25 X 3.25 (11/11) 19 Criminal Justice Secrecy, Presumption of Government Records Regularity, and the End of Law as We Know It By Robert Sanger W hile we are all busy practicing law here in Santa Barbara, there are those who are attempting to represent people who are imprisoned in Guantanamo Bay. There is another world of law (or nonlaw) that is practiced by those lawyers. They are not allowed to meet with their clients, they get very minimal discovery, and, to the extent that they do, they have to go to Washington, D.C., be thoroughly searched going in and out of a super-secret government office, read the discovery without taking notes, and then leave. The discovery they receive is redacted by the Government before it is deposited for viewing. The same process applies if a client sends a letter to his or her lawyer. The court procedures are different as well. The United States Supreme Court in 2008 overruled President Bush’s effort to suspend the Writ of Habeas Corpus in Boumediene v. Bush.1 Despite this enabling precedent, the federal trial courts have been reluctant to grant relief, and the Circuit Courts have not been liberal in their application of the Supreme Court’s decision. Nevertheless, the United States Court of Appeals for the District of Columbia Circuit, has rendered an opinion that makes any habeas relief unlikely for Guantanamo detainees. In this month’s Criminal Justice column, we will look at a decision that was filed on October 11, 2010 but was just recently published.2 Secrecy The most notable aspect of the opinion, to those who have not been reading opinions and orders relating to Guantanamo detainees, is that it is marked “SECRET” (now with a strike-through) and that large parts of the opinion are blacked out. This is America, and yet, few people know that we have secret court decisions and redacted opinions from our federal appellate courts. We support our troops and it is reasonable to withhold details of current military operations that would compromise their safety. It is likely that some—or, perhaps, many —of the people detained at Guantanamo Bay are enemy combatants who are properly held as prisoners of war. The 20 issue we address here is not whether, as litigants before the court, their claims are meritorious, it is whether we are destroying our system of justice by not giving them—and all litigants—a fair hearing. It is hard to imagine what national security secrets there are that pertain to some of these detainees, many of whom had marginal roles, if any, and who Robert Sanger have been in custody for ten years or longer. Even if there is something that is properly concealed from the public, it should not be of such volume that it requires the redaction of one quarter of an appellate opinion, which is the case in the Court of Appeals’ decision we will consider. Transparency in government is considered a hallmark of American governance. Americans are particularly critical of the regimes of other countries that do not allow open judicial review of government actions, particularly actions by their militaries. Open courts, public proceedings and public, if not published, decisions have been a protection we take for granted. Why is it that we now tolerate this kind of secrecy, not only in executive action, but in our judicial decisions? Actually, it is something that we have seen throughout history. When governments assume too much power, they tend to have secret courts and special proceedings that must be held in secret for the good of the realm. We Americans want to hold ourselves above secret tribunals like the Star Chamber in England or the Inquisition in Spain. Yet, we also know that, in our own country’s history, we have had times of repression. In hindsight, we find the Alien and Sedition laws of the late 18th Century, the Japanese Internment Laws of the 1940s and the Communist scare cases from the 1950s to be regrettable excesses that would be unimaginable in our enlightened democracy today. In hindsight, few people seriously contend that the extent of such government conduct was necessary or just. Yet, here we are with federal Courts of Appeals issuing censored opinions, with lawyers not being able to see the evidence against their clients and ordinary due process being truncated. We tolerate it because we do not have the benefit of being able to see our conduct outside of the narrow politics of fear and hatred. And that politics of fear and hatred is what generated the Alien and Sedition Acts, Santa Barbara Lawyer Criminal Justice the Japanese Interment and the anti-communist scares. In the same way that our American society was scared into believing that those repressive laws were necessary, we are being scared into believing that these laws are necessary today. Latif v. Obama The case of Adnan Farhan Abdul Latif v. Barack Obama3 is not only a secret, now redacted, court opinion, but one based on a concept that seems contrary to our American system of justice. It is written by Janice Rogers Brown, Judge of the D.C. Circuit Court of Appeal. Judge Brown had been appointed an Associate Justice of the California Supreme Court in 1996 by Governor Pete Wilson. On the California Court, she earned a reputation as a neo-conservative. 4 Her appointment to the D.C. Circuit Court5 was considered a move on the part of the Bush Administration toward solidifying that important Circuit Court behind the “unitary executive” concept developed by the Federalist Society. The Bush administration had used this doctrine to justify the assumption of power of that Administration by the Executive Branch. In the Latif decision, Judge Brown wrote the opinion of the Court that seems to uphold sheer military power at the expense of the principles of the Rule of Law, transparency in government, civilian review of the military and fundamental Due Process. It is difficult to determine the precise parameters of the opinion of the majority, since Judge Henderson concurred in a separate opinion and Judge Tatel filed a vigorous dissent. Judge Brown also engaged in a colloquy with Judge Tatel in her opinion, and it appears that her opinion may have been modified in response to criticism from Judge Tatel’s dissent. That also may account for what appear to be some anomalies within the opinion itself. Of course, the actual significance of the opinion is rendered even more unclear since substantial portions of the opinion have been blacked out. The Latif case came to the D.C. Circuit from a determination by District Court Judge Henry H. Kennedy that the government failed to carry its burden of proof in response to Mr. Latif’s Petition for Writ of Habeas Corpus.6 The government based its case on a hearsay document described as an “intelligence report.” The Petitioner had filed a declaration under penalty of perjury contesting the government’s version of events. While all the court records are heavily redacted, it appears that the controversy involves Mr. Larif, a native of Yemen, travelling from Yemen to Afghanistan in the year 2000. He was taken captive by Pakistani special forces in late 2000 and turned over to the United States in January 2001. December 2011 During the habeas corpus proceedings, the government submitted an intelligence report and declined to present any witnesses. Mr. Latif rested on his written response to the government’s intelligence report. After reviewing the report, Mr. Latif’s declaration in response to the report, and statements Mr. Latif had made during his years of interrogation, Judge Kennedy ordered the release of Mr. Latif, stating: “The evidence upon which respondents primarily rely, {redacted} is not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban. The document contains information that, {redacted} would support a conclusion that Latifs detention is lawful, and the Court does not take its contents lightly. But the Court cannot credit that information because there is serious question as to whether {redacted} accurately reflects {redacted} the incriminating facts {redacted} are not corroborated, and Latif has presented a plausible alternative story to explain his travel.” The government appealed. Presumption of Government Records Regularity The Circuit Court, through the opinion of Judge Brown, reversed the order releasing Mr. Latif and ordered that the case be remanded to the District Court for further findings. Central to the Court’s ruling, however, is the remarkable decision stating that the rule that ministerial governmental documents are presumed to be regular would be applied to the intelligence report which formed the evidence against Mr. Latif. This rule of evidence is based on the idea that ordinary ministerial government records kept in the ordinary course of business have a certain regularity. Ordinary birth and death records, for instance, can be relied upon. As to these innocuous records, the opposing party can still go forward with evidence that the records were tampered with or falsified. Judge Brown, however, took this doctrine to a new level and used it to presume regularity of the government “intelligence report” document which apparently included hearsay and unsubstantiated reports from other people. We do not know what the actual document says because it is labeled “Secret,” and all references to its actual content are blacked out of the Circuit Court opinion and elsewhere in the District Court records. The Circuit Court opinion recognizes that the intelligence report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.” Nevertheless, the Circuit Court opinion Continued on page 27 21 22 Santa Barbara Lawyer December 2011 23 Legal Community Rebecca Eggeman was recently appointed to the Nonprofit Organizations Committee of the State Bar of California’s Business Law Section. The Committee’s activities include reviewing and initiating federal- and state-level legislative, administrative and judicial developments relating to nonprofit organizations. As part of her participation in the Committee, Rebecca co-presented a California State Bar MCLE teleseminar on “Forming Nonprofit Corporations” on October 6, 2011. Rebecca has established a solo practice that focuses on serving nonprofit organizations and social enterprises, Previously, she was a transactional attorney in Mullen & Henzell’s business and real estate department, an insurance coverage attorney at Minehan, McFaul and Fitch, and a past president of the Santa Barbara Women Lawyers, Her website is www.eggemanlaw.com. Hager & Dowling is pleased to announce that Christine W. Chambers has joined the firm as an associate attorney. Ms. Chambers will focus on tort and insurance trials and appeals. After earning her Bachelor of Arts from Case Western Reserve University, Cleveland, Ohio, she graduated from Case Western Reserve University School of Law, Cleveland, Ohio. Ms. Chambers also interned at the International Criminal Tribunal for the Former Yugoslavia, The Hague, Netherlands, and recently served as a Legal Resource Center Volunteer for the Legal Aid Foundation of Santa Barbara County. 24 Bruce N. Anticouni has announced his retirement after forty years of practicing employment law in California. Perhaps best known for his work on wage and hour class actions, Bruce has also been a major supporter of the Legal Aid Foundation, the Santa Barbara Women Lawyers Foundation, the Environmental Defense Center, and many other non-profit organizations in Santa Barbara. Mr. Anticouni will continue to provide advice and representation on employment matters to non-profit organizations on a pro bono basis. Kristi D. Rothschild, has established her own law firm. Formerly with Anticouni & Associates, Kristi’s practice will continue to focus on employment related matters, including class action litigation. The Santa Barbara Barristers are pleased to announce that Reed Olmstead has joined the Board of Directors. Reed attended the Santa Barbara College of Law and was admitted to the California Bar in May 2010. He is currently an associate at Hurlbett & Faucher, LLP, and focuses on representing consumer and small business debtors and creditors in cases under Chapters 7, 11, 12 and 13 of the Bankruptcy Code and representing Chapter 7 and Chapter 11 Trustees. Please join the Santa Barbara Barristers for a Swearing-In Ceremony for all those who passed the July 2011 Bar Exam on Tuesday December 6, 2011 at 5pm in Dept. 2 at the Santa Barbara Courthouse at 1100 Anacapa St. Results for the exam will be released Friday November 18, 2011. More details to follow. All are welcome to come and support the Santa Barbara legal community’s newest members. If you have news to report - e.g. a new practice, a new hire or promotion, an appointment, upcoming projects/initiatives by local associations, an upcoming event, engagement, marriage, a birth in the family, etc… - The Santa Barbara Lawyer editorial board invites you to “Make a Motion!”. Send one to two paragraphs for consideration by the editorial deadline to our Motions editor, Mike Pasternak at [email protected]. If you submit an accompanying photograph, please ensure that the JPEG or TIFF file has a minimum resolution of 300 dpi. Please note that the Santa Barbara Lawyer editorial board retains discretion to publish or not publish any submission as well as to edit submissions for content, length, and/or clarity. Santa Barbara Lawyer “Finally, someone my clients can count on just like they count on me.” Your relationship with your clients is all about trust. They trust your integrity and expert legal advice. And they value the personal and confidential relationship you share. It’s very much the same at Montecito Bank & Trust. Like you, we believe in longstanding client relationships. In offering creative solutions for each person’s unique needs. And especially in earning their trust with personal commitment and professional expertise. Whether it’s designing an investment portfolio, managing multiple real estate properties or planning charitable gifts, you can count on our Wealth Management team to provide your clients with a level of service that meets not just their needs, but your standards. Wealth advisory services – one of the many Paths to prosperity® you’ll find at Montecito Bank & Trust. What’s your path? WEALTH MANAGEMENT Investment Management - Trust Services - Estate Administration Real Property Management - Philanthropic Services www.montecito.com Call for more information Santa Barbara: 1106-E Coast Village Road, Montecito, CA 93108 • 805 564-0219 Solvang: 591 Alamo Pintado Road, Solvang, CA 93463 • 805 686-8620 Ventura/Westlake Village: 701 E. Santa Clara Street, Ventura, CA 93001 • 805 830-8005 Montecito Bank and Trust: “Count on me” New Zip December 2011 Santa Barbara County Bar Association Wealth Management- 7.5” x 10” Non- Bleed 25 Member FDIC Legal Community Verdicts & Decisions Ricardez v. McCorkendale, et al. Santa Barbara Superior Court, Anacapa Division Case Number: 1301059 Type of Case: Auto Type of Proceeding: Jury trial Judge: Hon. Denise De Bellefeuille Length of trial: 11 Days Length of deliberations: 2 ½ Days Date of Verdict or Decision: July 25, 2011 Plaintiff: Adriana Ricardez Plaintiff’s Counsel: Torsten Bassell and Nicole Lari-Joni of The Lari-Joni Law Firm, Alan H. Fenton of the Law Offices of Alan H. Fenton Defendants: Clifton McCorkendale, David Tedesco, and Farmers Insurance Defendants’ Counsel: Howard Cho of Cho & Brown and Bruce Schechter of Veatch Carlson Experts: For Plaintiff: Dr. Alan Moelleken (orthopedic surgeon), Edward Bennett (vocational rehabilitation), Gary Gray (CPA), and Dr. Jesse Wobrock (accident reconstructist); For Defendant: Dr. Steven Nagelberg (orthopedic surgeon), and Mr. Jai Singh (accident reconstructionist) Facts and Contentions: On July 13, 2006, a four-vehicle, rear-end accident occurred on the Northbound 101 freeway in Summerland, California. The first vehicle (V1) stopped in congested traffic. Plaintiff (V2) stopped behind V1. The driver of the third vehicle (V3), Defendant Tedesco, contended he stopped behind V2 before the accident and then was pushed into V2 by V4, driven by Defendant McCorkendale. Plaintiff claimed that V3 (Tedesco) rear-ended Plaintiff before V3 was rear-ended by V4. Summary of Claimed Damages: Plaintiff claimed total damages of $1,710,022, as follows: past medical expenses ($284,125.00), past lost earnings ($133,217.00), future medical expenses ($291,040.00), and future lost earnings ($1,001,640.00). Result: The jury voted 10-2 that Defendant Tedesco was negligent. The jury voted 12-0 that his negligence was a substantial factor in causing Plaintiff’s harm and that he was acting within the scope of his employment with Farmers Insurance Company and the Law Offices of Vail & Stub at the time of the accident. The jury voted 12-0 that Defendant McCorkendale was negligent and that his negligence was a substantial factor in causing Plaintiff’s harm. The jury allocated fault 64% to Defendant Tedesco and 36% to Defendant McCorkendale. The jury awarded Plaintiff total damages of $3,890,625.46, as follows: past medical expenses ($284,125.46), past lost earnings ($159,000.00), other past economic loss ($0.00), future medical expenses ($415,000.00), future lost earnings ($667,500.00), other future economic loss ($390,000.00), past non-economic loss ($225,000.00), and future non-economic loss: ($1,750,000.00). 26 Santa Barbara Lawyer Criminal Justice Sanger, continued from page 21 gives the report a presumption of regularity. One of the anomalies, or series of anomalies, in the opinion is the acknowledgement, “without deciding,” that the standard of proof in the habeas proceeding is on the government to establish lawful detention by a preponderance of the evidence. Thus, early in the opinion, it is said that the presumption of regularity of the government intelligence report is limited to the presumption of authenticity of the document and not to its accuracy. However, the opinion then characterizes Latif’s challenge to the intelligence report as a challenge to the “evidence-gathering process itself.” Because of that, the presumption of regularity to the government document is held to apply. Then, to turn the burden of proof on its head, the opinion states: “Because the Report is entitled to a presumption of regularity, and because the Report, if reliable, proves the lawfulness of Latif’s detention, we can only uphold the district court’s grant of habeas if Latif has rebutted the Government’s evidence with more convincing evidence of his own.” So, under Latif v. Obama, the detainee, not the government, now has the burden of proof by convincing evidence. The only burden on the Government is to present a document, prepared under questionable circumstances, to which there will now be a presumption of regularity. Our system of justice is based on the requirement that the government produce actual evidence of guilt, not anonymous hearsay dossiers, as is the practice in many totalitarian regimes. Yet this opinion used an otherwise innocuous rule of evidence to introduce into the American system of justice this very concept of trial by dossier. Once there is a dossier (an intelligence report), the detainee has the burden of rebutting the dossier “with more convincing evidence of his own.” The United States Supreme Court needs to address this issue in a principled fashion. This opinion places government convenience (or worse) beyond the review by the courts and well beyond the public view. The presumption of regularity, if applied to accusatory documents, puts the government beyond the law or accountability. The redacted form of this censored opinion also reaffirms the already entrenched position that there is no transparency when the United States is involved in some sort of international conflict. It is also disconcerting that the United States is in an almost perpetual state of international conflict and that, just like the claim that secrecy was required for the “cold” war need to fight communists, this gives far too much leeway to the military and the rest of the Executive Branch. December 2011 The problem is that our objection is always met by the claim of those in power, that we cannot know the extent of the threat. We, the public, cannot criticize because we do not have the information; we cannot have the information because the government claims it must be kept secret. Throughout the history of our nation and others, people have been told that they have to accept it. Our nation has survived periods of repression in its history only because there are those who object to secrecy and lack of accountability. Conclusion Even if there is something requiring all the secrecy in this particular instance—perhaps, somehow, this old government document discussing Mr. Latif’s travels in 2000 has to be kept secret because it compromises current national security—the presumption of government records regularity cannot be applied to allow the government to stand. Even where national security is implicated, there has to be accountability and as much transparency as the situation will allow. Robert Sanger is a Certified Criminal Law Specialist and has been a criminal defense lawyer in Santa Barbara for 38 years. He is a partner in the firm of Sanger & Swysen. Mr. Sanger is an Officer of California Attorneys for Criminal Justice (CACJ) and is the Co-Chair of the CACJ Death Penalty Committee as well as a Director of Death Penalty Focus and a Member of the ABA Criminal Justice Sentencing Committee and the NACDL Death Penalty Committee. Endnotes 1 Boumediene v. Bush, 128 S. Ct. 2229, 2242 (2008). 2 The one year delay in publication was apparently required to censor the opinion. 3 Latif v. Obama, 10-5319, 2011 WL 5431524 (D.C. Cir. Oct. 14, 2011). 4 Judge Brown has made many public statements in support of her libertarian/conservative views. One of the more remarkable speeches was given before the Federalist Society meeting at the University of Chicago, April 20, 2000, while she was a Justice of the California Supreme Court. The text is located at: http://www. communityrights.org/PDFs/4-20-00FedSoc.pdf. 5 Judge Brown was nominated by George W. Bush in 2003 to the D.C. Circuit, however, her confirmation was contested and her appointment was not confirmed by the Senate until 2005. She was originally nominated by President Bush with the thought that she might be nominated to the United States Supreme Court in due course. That did not happen. 6 Judge Kennedy’s Memorandum Opinion can be found at: http:// sblog.s3.amazonaws.com/wp-content/uploads/2011/11/LatifJudge-Kennedy-opinion-8-16-10.pdf. 27 Classifieds Latina/o Lawyers of Santa Barbara Present a Film Office Space Available Free standing building, 943sf, three offices, two parking spaces, rear of 1531 Chapala Street, $2.60 full service gross includes utilities. Charming, quiet site, professional environment. Gina Meyers, CB Commercial, 898-4250. “Which Way Home” Tuesday, December 13th 12:10 PM Department 1 of the Superior Court Office Space Available Small firm seeks compatible attorney to share office space one block from courthouse. Corner office (16x17) with view of court house. Secretarial and reception service available, as well as covered parking. Call (805) 963-9585. This compelling documentary film begins with 14-year-old Kevin and 13-year-old Fito, who are from Honduras, crossing the border into southern Mexico. They are embarking upon a journey with the end goal of reaching the promised land, the United States of America. Their plan is to “hop a freight”, to ride on the tops of trains the 1400+ miles to the U.S. border. Thousands of persons make the same journey each year. A surprising number of them are children, unaccompanied by any adult. The Mexican government has instituted aid mechanisms to protect those on the perilous journey. Why do they leave their homes and families and embark on a high risk, life threatening trip? What are the circumstances that compel them to leave their homeland to seek a new life? What are their expectations regarding life in the U.S. and are they at all realistic? How many of them are seeking to find a parent who left home years ago to find work in the U.S., never to be heard from again? Many of them die, or are maimed along the route. They drown in the ocean or in a river. They are bitten by rattlesnakes or are hit by fast-moving cars on busy highways. They suffocate in locked truck trailers and boxcars stuck on sidings. Some are shot down trying to run from border agents or by Arizona ranchers who advertise “human safaris”. They are beaten or shot to death by border thieves, drug cartels (because they refuse to run drugs), or human smugglers because they can’t pay their fee. They die frozen, stiff as a log, up in the Rumarosa Mountains buried under the snow. Many die of heat exhaustion in the desert. Many are victims of crime, some of an unspeakable nature. But they keep coming and some make it through. This film will enlighten regarding their circumstances and motivations. Please bring a brown bag lunch. Please contact Josefina at 882-4560 at least 24 hours in advance so we can plan for an expected attendance. The film is approximately 79 minutes in length, so please try to arrange your schedule so you can stay until approximately 1:45 PM, if you want to stay for a brief discussion. Connecting x ATTORNEYS • PARALEGALS • LEGAL STAFF confidential employment placement Kathi A. Whalen ~ President 79 E. Daily Drive Suite #249 Camarillo, CA 93010 Ventura County 805 389-3663 Santa Barbara 805 965-2020 Cell 805 443-8422 Fax 805 512-8118 www.whalenbryan.com Paralegal PROFESSIONAL CERTIFICATE PROGRAM BECOME A PARALEGAL IN AS FEW AS 6 QUARTERS. UCSB EXTENSION. YOUR NEW CAREER AWAITS. 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December 2011 29 December 2011 Calendar SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY 1 23 Family Law Section Morning Coffee 456789 10 Santa Barbara Lawyer Submission Deadline 11121314 151617 Latina/o Lawyers Film Presentation 18192021222324 25262728293031 2011 SBCBA SECTION HEADS Alternative Dispute Resolution David C. Peterson 441-5884 [email protected] Debtor/Creditor Section Heads Needed Bench & Bar Relations Herb Fox [email protected] Elder Law Denise Platt [email protected] Jody Moore [email protected] Civil Litigation Naomi Dewey Client Relations Thomas Hinshaw [email protected] Lol Sorenson [email protected] 899-4777 604-7130 604-7130 963-3301 729-2526 649-1389 Employment Law Rafael Gonzalez [email protected] Paul Wilcox [email protected] Estate Planning/Probate Lori Lewis [email protected] 30 966-1501 966-1501 Family Law Jennifer Drury [email protected] Vanessa Kirker [email protected] Santa Barbara Lawyer 964-5105 In-House Counsel & Corporate Law Betty L. Jeppesen 963 -8621 [email protected] Intellectual Property/Tech. Business Christine L. Kopitzke 845-3434 [email protected] Real Property/Land Use Bret Stone [email protected] 966-1501 879-7523 Taxation Peter Muzinich [email protected] Joshua P. Rabinowitz [email protected] 898-9700 963-9721 963-0755 The Santa Barbara County Bar Association wishes its membership a joyous holiday season. Law Offices of JARRETTE & WALMSLEY ROBERT R. WALMSLEY CALIFORNIA FAMILY LAW APPEALS Published family law appeals lawyer Over 23 years experience Appeals, writs, and post-trial motions Property, custody, and support appeals Member of the American Academy of Adoption Attorneys, Academy of California Adoption Attorneys, and Academy of California Family Formation Lawyers www.jarrettewalmsley.com Telephone: (805) 845-7700 Facsimile: (805) 845-7705 120 El Paseo, Santa Barbara, California 93101 Email: [email protected] r u b e n st e i n s o r e n s e n a dr servi c e s Mediation, Arbitration Referee, Special Master We are proud to announce the opening of our new office at 211 E. Anapamu Street, Santa Barbara 93101 Ready to set tle your case Real property Probate Business Family business and succession Employment Personal injury December 2011 Judith Rubenstein, J.D., M.A., Psych. [email protected] www.rsmediate.com t 805.892.2747 dl 8 0 5 . 6 3 7 . 6 8 5 0 Lol Sorensen, J.D., M.S.W lo l @ r s m e d i a t e . c o m www.rsmediate.com t 805.892.2747 dl 8 0 5 . 6 8 9 . 6 6 5 4 31 Prsrt Std Santa Barbara Lawyer U.S. Postage Paid Santa Barbara, CA The Santa Barbara County Bar Association 15 W. Carrillo St., Suite 106 Santa Barbara, CA 93101 Permit #734 Change Service Requested For your Real Estate needs, choose carefully and choose experience! “I’ve been a Lawyer for 18 years and a Real Estate Broker with my own company for 15 years.” Gary Goldberg Real Estate Broker • Licensed Attorney UC Hastings College of Law • Order of the Coif DRE License # 01172139 “As a real estate company owner beginning my 15th year of serving Santa Barbara, I look forward to helping you buy or sell real estate property, and as always, personally dedicating myself to striving for excellence in every transaction. My expertise and detailed knowledge of properties includes Montecito, Hope Ranch, Carpinteria, Summerland, Goleta, Santa Barbara, and all the surrounding beach communities.” Over $400,000,000 Sold Since January 1, 2000 Among the top 10 agents in Santa Barbara (per MLS Statistics in Gross Sales Volume) • Intensive Marketing Plan for each listing • Member, Santa Barbara, Ventura, and Santa Ynez Real Estate Boards • Expert witness in Real Estate and Divorce Matters, and Estate Planning • Licensed Attorney, Professor Real Estate Laws Course at SBCC 1086 Coast Village Road, Santa Barbara, California 93108 • Office 805 969-1258 • Cell 805 455-8910 To view my listings visit www.garygoldberg.net • Email [email protected] 32 Santa Barbara Lawyer
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