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Santa Barbara
Official Publication of the Santa Barbara County Bar Association
September 2013 • Issue 492
Lawyer
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Santa Barbara Lawyer
September 2013
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©2013 Santa Barbara County Bar Association
CONTRIBUTING WRITERS
Naomi Dewey
Teo Ernst
Jacqueline Hall
Joseph J. Lockhart
Robert Sanger
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Santa Barbara
Official Publication of the Santa Barbara County Bar Association
September 2013 • Issue 492
Articles
Lawyer
Sections
6 Feigning and Malingering, By Joseph J. Lockhart, PhD,
ABPP and Teo Ernst, PsyD, QME
10 CWL’s 25th Annual Southern California Judicial Reception, By Naomi Dewey
12 New Legal Challenge to Guantanamo Confinement, By
Robert Sanger
18 Gary Blair’s Retirement Party Photograph Spread
21 Change is Coming: Require Pro Bono Prior to Admission to the Bar, By Jacqueline Hall
16 California Legislation Pending
16 Review Pending
22 This Month in Santa Barbara Lawyer History
23 Section Notices
29 Classifieds
30Motions
32 Verdicts and Decisions
34Calendar
About the Cover
Cabrillo Boulevard in Santa Barbara as the sun sets (Matt
Erickson photo).
Attendees celebrate Gary Blair’s retirement. For more, see page 18.
September 2013
5
Legal News
In civil proceedings, plaintiffs may feign the presence
of psychiatric disorders, such as depression and PTSD, in
order to achieve compensation, time off work, or legal vindication if they believe they were wronged. Plaintiffs who
are alleging a head injury may feign cognitive or memory
deficits. In personal injury claims, plaintiffs with injuries
may exaggerate physical pain.
In criminal settings, defendants may feign mental health
symptoms in order to appear incompetent to stand trial, or
to appear insane at the time of their crime. In sentencing
proceedings, defendants may feign mental health conditions
which they hope will lessen the severity of their sentence.
Feigning and
Malingering
By Joseph J. Lockhart, PhD, ABPP and
Teo Ernst, PsyD, QME
M
How Good are Experts at Detecting
Malingering?
yth or Fact?
Forensic mental health experts, by virtue of their
training and experience, are able to detect whether
someone is honest or malingering by means of the clinical interview. Persons who misreport and exaggerate their symptoms do
so because they are dishonest; if they exaggerate in one area, they
will lie or exaggerate in all areas.
These statements are myths, not facts. We will discuss
how professionals, whether in mental health or medicine,
are almost never able to detect deception by interview or
observation alone. An exception to this limitation is when
they are aided by sophisticated validity tests, structured
interviews, and objective testing. At the same time, there
are many normal cognitive processes which influence how
people remember their pre-injury functioning, and how
they attribute their current symptoms to their injury. Finally,
we discuss some important limitations and caveats of all
psychological tests, including validity tests.
Where does Feigning Occur in Legal
Proceedings?
Malingering is defined by the DSM as “...the intentional
production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives...”1
Feigning, on the other hand, is defined as the deliberate fabrication or gross exaggeration of psychological or physical
symptoms without any assumptions about its goals.
Given the fact that we cannot read one another’s minds,
we can never be entirely certain as to why a particular
client either does more poorly on a test than expected, or
expresses more symptoms than seem warranted. For these
reasons, we prefer to use the term “feigning” to characterize
failure on symptom validity tests. Feigning does not imply
a particular motivation, external incentive, or deliberate
intent to deceive.
6
Historically, mental health experts have attempted to
gauge an examinee’s honesty by means of the clinical interview. By relying on their clinical experience and knowledge
of psychiatric disorders, experts develop a “sense” of the
examinee’s honesty about their symptoms. Although some
experts2 claim very high rates of detecting malingering
through the clinical interview, none have been shown to be
accurate above a chance level. Thus, experts who conclude
that a plaintiff is feigning without a systematic assessment
are committing a “serious omission.”
Research by Aldert Vrij3 demonstrates that “experts” in
lie detection (including law enforcement and mental health
professionals) rarely do better than untrained laypersons.
They typically perform somewhat above chance in detecting lies, but often make the opposite mistake of failing to
detect the truth. In fact, professionals often pay attention
to cues which are not associated with deception.4
How Big is the Problem?
From the outset, it is important to estimate the scope
of the problem of feigning. If feigning is exceedingly rare,
then even very good tests will be unable to catch a feigner,
without also misidentifying honest responders (so-called
“false positives”). On the other hand, assuming that every
plaintiff or defendant is dishonest deprives them of the
remedies to which they are entitled. In a criminal context,
it could even force an incompetent defendant into trial.5
A landmark study on the prevalence of symptom exaggeration was conducted by the neuropsychologist Wiley
Mittenberg6 and his colleagues. Surveying a large number
of neuropsychologists throughout the country, Mittenberg
found estimates of symptom exaggeration as high as 30%
in personal injury cases, 20% in criminal cases, to a low
of 8% for non-contested medical cases. In general, these
estimates have proven to be quite robust in subsequent
Santa Barbara Lawyer
Legal News
research, with the prevalence of feigning highest in civil
cases, followed by high-stakes criminal cases, and lowest
in those cases not involving compensation.
However, these general estimates cannot answer the
essential legal question as to whether a plaintiff or defendant is feigning in a particular case. What is needed are
tools which the forensic psychologist can bring to these
evaluations to determine whether the defendant is honestly
reporting or exaggerating their symptoms. A potentially
confounding issue is the normal psychological processes
which tend to distort memory and self-report in people
who have suffered a significant illness or injury.7
Normal Changes in Memory after Injury
Examinees frequently distort their self-report of current
symptoms and pre-injury functioning for many reasons not
associated with feigning. In fact, it is normal for individuals
who have experienced a significant injury or illness (e.g.,
headaches, sports injury) to “idealize” their pre-injury functioning, and to attribute most of their current problems in
living to the injury.8 These distortions are not intentional,
and should not be confused with malingering.
So, What Does Work?
Feigned Cognitive Impairment - If clinical experience
and the clinical interview do not make mental health experts
better able to detect feigning, what does work? Fortunately,
objective and legally defensible methods do exist to detect
feigning and symptom exaggeration.9 The strategies used
in detecting feigned cognitive impairment range from the
straightforward to the highly complex. The three major
detection strategies include the “Floor effect,” the “performance curve,” and “forced choice testing.” Examples of such
tests include the Test of Memory Malingering (TOMM) and
Word Memory Test (WMT).
Floor Effect - Tests that utilize the “floor effect” to detect
feigning depend on well-established cognitive research
showing that certain tasks may seem difficult on their
face, but are in fact trivially easy. For example, people are
amazingly good at visual recognition tests. Given only brief
glimpses of dozens of drawings, they can accurately pick
out images they have seen before. When an examinee scores
far below the expected level on one of these tests, especially
when they perform below the level of patients with mild
traumatic brain injury (mTBI), there is valid concern they
may be exaggerating their memory impairments.
Performance Curve - Another strategy in detecting
cognitive feigning is termed the “Performance Curve.”
Tests using this approach include a broad range of items,
September 2013
from the very easy to the extremely difficult. The so-called
“curve” in performance occurs because nearly everyone gets
the easy items correct, but this probability declines as the
items increase in difficulty. Examinees who are attempting
to feign will presumably answer simple items incorrectly. As
the item difficulty increases, the feigner will not know the
answer, and begins scoring at a chance level. By examining
the test results, it is possible to determine mathematically
how closely the examinee’s responses fit the typical performance curve.
Forced-Choice Testing - A third, but powerful strategy
is termed “forced-choice testing.” Examinees are “forced”
to choose among four potential responses, so that even
random answers would be correct 25% of the time. If the
examinee scores significantly below chance, it provides
evidence that they are deliberately choosing an incorrect
answer.
Detecting Feigned Psychological Symptoms
There are empirically-based techniques to detect feigned
psychological symptoms, including psychosis, depression,
and posttraumatic stress disorder.10 These techniques are
very distinct from the unstructured clinical interview, in that
the psychologist uses structured interviews and questionnaires, and is able to directly compare the examinee’s results
with empirical norms. Examples of specific tests include the
Structured Interview or Reported Symptoms (SIRS) and the
Miller Forensic Assessment of Symptoms Test (M-FAST).
Three major detection strategies used by these tests include identifying rare symptoms, rare symptom combinations, and unlikely symptom severity.
Identifying Rare Symptoms: This strategy capitalizes
on the fact that certain symptoms are rarely endorsed by
patients with valid mental illness. As an increasing number
of rare symptoms are endorsed, it becomes progressively
less likely that the symptoms are part of a valid mental
disorder.
Rare Symptom Combinations: This strategy identifies
symptoms which rarely exist in combination in real patients, but may be reported by feigning individuals who do
not know which psychological symptoms co-exist together.
Unlikely Symptom Severity: In contrast to individuals
with valid impairments, feigning individuals often endorse a
wide range of symptoms as “unbearable” or extreme. Thus,
when examinees endorse large numbers of symptoms as
severe, it suggests that they may be exaggerating, particularly if the severity of symptoms does not correspond to
their everyday functioning.
7
Legal News
Pain and Illness Exaggeration
Although the detection of exaggerated medical symptoms
and pain is beyond the scope of this article, there are certain
tests (e.g., the MMPI-2, MCMI) which are able to evaluate
the consistency of symptom reporting, and compare the
examinee’s results with valid patients or known feigners.11 Similarly, patients who complain of pain typically
also complain of problems with concentration, memory,
and attention. These pain-related cognitive symptoms are
susceptible to the same kinds of validity testing used in
neuropsychological evaluations.12
Limitations and Caveats in the use of Validity
Testing
Symptom validity tests (SVT’s) are far from perfect. They
are subject to the same empirical and ethical limitations as
are all psychological tests, and it is the duty of the expert
to be familiar with the psychometric characteristics of the
test they employ.
Validity tests are not all “created equal.” They have
differing levels of sensitivity and specificity. Tests which
have lower specificity run the risk of misidentifying nonfeigners as feigners, or “false positives.” Similarly, validity
tests are not appropriate for use with populations that have
documented neurological disorders, such as Alzheimer’s
or Huntington’s Dementia. Such patients fail SVT’s at an
unacceptable rate.
Importance of Multiple Sources of Information
An essential distinction between the forensic vs. clinical evaluation is the need to seek and compare compare
data from multiple sources of information, including selfreported symptoms, psychological tests results, records, and
collateral interviews. Although it is acceptable in clinical
practice to form a diagnosis based solely upon a patient’s
self-reported symptoms, forensic evaluations draw upon
multiple sources of information to form a more objective
opinion. This is essential in the forensic evaluation, given
the need to withstand judicial scrutiny. During forensic
evaluations, significant inconsistencies between sources
of information raise a red flag for symptom exaggeration.
However, a mere hypothesis is not enough; the evaluator
needs to systematically evaluate the possibility through
testing.
How should experts respond to examinees who
fail symptom validity tests?
What should the forensic psychiatrist or psychologist
conclude when the examinee has failed symptom validity
tests? As the psychologist is not a detective, he or she can
8
never conclusively know an examinee’s motivation for their
performance on a symptom validity test. Nevertheless,
such results cast doubt on the accuracy of the examinee’s
self-report, including their description of their symptoms,
their severity, and their responses on other objective psychological and neuropsychological tests.
Even if feigning is found, third party information including medical records and collateral interviews may still be
used to support the presence of psychiatric or cognitive
symptoms. However, unless multiple sources of third party
information exist and are consistent with one another, much
of it will be uncorroborated, because the self-report and
testing data are rendered unreliable.
The APA’s guidelines for forensic assessment provide
ethical guidance for forensic psychologists when dealing
with uncorroborated data (APA, 2013): “When relying upon
data that have not been corroborated, forensic practitioners
seek to make known the uncorroborated status of the data,
any associated strengths and limitations, and the reasons
for relying upon the data.”13
Thus, when feigning occurs on symptom validity tests,
in a very real sense the examinee has harmed themselves,
by invalidating evidence that might otherwise have been
used to corroborate their case. While third party evidence
of psychiatric symptoms may still be used (if it exists), it is
unlikely to be as directly applicable to the plaintiff’s emotional injuries. This situation is particularly damaging in
civil or competency cases where the plaintiffs or defendants
bear the burden of proof. Without supporting evidence,
they are unlikely to overcome their legal burden, and their
claim will fail.
Concluding Remarks
Malingering is a highly pejorative term, like a “scarlet
M,” branding the examinee as manipulative and unreliable. Forensic mental health professionals should be very
cautious before they employ a term with such potentially
pejorative consequences. Similar caution applies in making
this diagnosis, because malingering requires the “deliberate manufacture” of symptoms for an external “incentive.”
Psychologists are not “mind readers;” without compelling
evidence, we cannot be certain of the motivations of examinees, and hence, make the diagnosis of “malingering.”
On the other hand, forensic psychologists are bound by
their standards and guidelines to make clear the strengths
and weaknesses of the evidence on which they base their
conclusions. If an examinee feigns on a validity test or selfreport, then any conclusions regarding their psychological
Continued on page 11
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9
Legal News
CWL’s 25th Annual
Southern California
Judicial Reception
By Naomi Dewey
O
n July 26, 2013, academics, lawyers, court administrators, and jurists from around the state flocked
to Nipomo for California Women Lawyers’ 25th
Annual Southern California Judicial Reception. The historic
Dana-Powers House played charming host for the Friday
evening gathering. CWL President Eliza Rodrigues presented the Joan Dempsey Klein Distinguished Jurist Award
to the Honorable Teresa Estrada-Mullaney, Judge of the San
Luis Obispo Superior Court (Retired).
Tributes to Judge Estrada-Mullaney were given by Hon.
Barry La Barbera, Presiding Judge of San Luis Obispo Superior Court, Hon. Denise De Bellefeuille, Santa Barbara
Superior Court, Dr. Laura Gomez, Esq., UCLA School of
Law, and attorneys Mark Jacobson and Rod Cathcart from
the Administrative Office of the Courts.
Judge Teresa Estrada-Mullaney was selected by California
Women Lawyers to receive the award based on a remarkable professional career that established her as a trailblazer
CWL President Eliza Rodrigues presents Judge Estrada-Mullaney the
Joan Dempsey Klein Distinguished Jurist Award.
10
for women in the legal profession.
As the daughter of immigrant parents, with Spanish as her
first language, she overcame social and economic barriers
to reach her academic and professional goals. A graduate
of the UCLA School of Law, nominators commented that
she was driven not by a desire for recognition, but for the
purpose of “making a difference.”
Judge Estrada-Mullaney’s many firsts began in Orange
County where she was the first Latina Deputy District Attorney. She was the first female Deputy District Attorney
in San Luis Obispo County, and she distinguished herself
as the first woman to prosecute a murder case and the first
to use DNA evidence in trial in San Luis Obispo County.
The first woman to be appointed to the San Luis Obispo
Municipal Court bench, in 1992, Judge Estrada-Mullaney
won a position on the Superior Court bench following a
contested election in 1996. She was the second Hispanic in
the history of the San Luis Obispo Superior Court to serve
as a judge, the first being Governor Romualdo Pacheco, who
served from 1854 to 1859 and went on to become the 12th
Governor of California. In recognition of her service, Judge
Estrada Mullaney was named 2006 “Influential Person” in
Latino Today.
Judge Estrada-Mullaney retired on January 25, 2012 after
twenty years as a Municipal and Superior Court Judge for
San Luis Obispo County. She continues to work around
the State in the Assigned Judges Program.
The Joan Dempsey Klein Distinguished Jurist Award
was first presented in 1994. At the time, it was the “Distinguished Jurist” Award and its first recipient was Joan
Dempsey Klein, a Justice on the Second District Court of
Appeal in California. Justice Klein is a champion of women’s
rights and a pioneer in the struggle to achieve equal opportunity for women in the law. She was a founder and
provisional president of CWL and the first president of the
National Association of Women Judges, and she has spent
considerable time giving support and positive reinforcement to women in the legal profession. She is well known
as an excellent judge who listens, encourages dialogue,
and fosters consensus. She accomplished all of this while
raising five children.
Candidates for the Joan Dempsey Klein Distinguished
Jurist Award are evaluated for excellence as jurists and for
longstanding vigorous service and inspiration to the women
lawyers of California. Those eligible for consideration are
from the southern portion of the State.
The Joan Dempsey Klein Distinguished Jurist Award is
presented annually at CWL’s Southern California Judicial
Reception. To attend, please keep an eye on CWL News
and Events and the CWL Calendar.
Santa Barbara Lawyer
Legal News
Judge Estrada-Mullaney watches on.
Naomi Dewey, Brandi Redman, Danielle DeSmeth, Judge Teresa Estrada-Mullaney,
Eliza Rodrigues, Natasha S. Chee, and Kelly Robbins attend the CWL 25th Annual Southern
California Judicial Reception on July 26, 2013.
Lockhart/Ernst, continued from page 8
injury, disability, or impairment become correspondingly
less certain, and based on subjective, rather than objective
data. Such weaknesses will dramatically weaken their
claim.
Dr. Lockhart is a Board Certified forensic psychologist, a Fellow of
the American Academy of Forensic Psychology.
Dr. Ernst is a forensic psychologist, a Qualified Medical Evaluator
and an Assistant Clinical Professor at UCSF.
References
1 American Psychiatric Assoc. (2004). DSM-IV-TR. Washington:
Author
2 Resnick, P. J. (2007). My favorite tips for detecting malingering
and violence risk. The Psychiatric clinics of North America, 30(2),
227–232.
3 Vrij, A. (2008). Detecting Lies and Deceit: Pitfalls and Opportunities. Hoboken, NJ: John Wiley and Sons.
4 Inbau, F., Reid, J., Buckley, J., and Jane, B. (2011). Criminal Investigation and Confessions. Jones and Bartlett Learning.
5 Drope v. Missouri (1975). US Supreme Court, 420 U.S. 162; 95 S.
Ct. 896; 43 L. Ed. 2d 103; 1975 U.S.
6 Mittenberg, W., Patton, C., Canyock, E. M., et al. (2002). Base
September 2013
Rates of Malingering and Symptom Exeggeration. Journal of
Clinical and Experimental Neuropsychology, 37–41.
7 Gunstad, J., & Suhr, J. A. (2001). “Expectation as etiology” versus
“the good old days”: postconcussion syndrome symptom reporting in athletes, headache sufferers, and depressed individuals.
Journal of the International Neuropsychological Society: JINS,
7(3), 323–333. Greve, K. W., Ord, J. S., Bianchini, K. J., & Curtis,
K. L. (2009). Prevalence of malingering in patients with chronic
pain referred for psychologic evaluation in a medico-legal context. Archives of Physical Medicine and Rehabilitation, 90(7),
1117–1126.
8 Barsky AJ. (2002). Forgetting, fabricating, and telescoping: The
instability of the medical history. Archives of Internal Medicine,
162(9), 981–984. doi:10.1001/archinte.162.9.981
9 Rogers, R (2008). Clinical Assessment of malingering and deception. New York: The Guilford Press.
10 Rogers, R., & Shuman, D. W. (2005). Fundamentals of Forensic
Practice: Mental Health and Criminal Law.
11 Bianchini, K. J., Etherton, J. L., Greve, K. W., Heinly, M. T., &
Meyers, J. E. (2008). Classification accuracy of MMPI-2 validity
scales in the detection of pain-related malingering: a knowngroups study. Assessment, 15(4), 435–449.
12 Iverson, G., King, R., Scott, J., & Adams, R. (2001). Cognitive
Complaints in Litigating Patients with Head Injuries or Chronic
Pain. Journal of Forensic Neuropsychology. Volume 2, Issue 1.
13 American Psychological Association. (2013). Specialty guidelines
for forensic psychology. American Psychologist, 68(1), 7–19.
doi:10.1037/a0029889
11
Criminal Justice
New Legal
Challenge to
Guantanamo
Confinement
By Robert Sanger
I
n this month’s Criminal Justice column we will discuss
a new Petition for Writ of Habeas Corpus filed in the
federal court relating to the non-release of detainees
held at Guantanamo Bay notwithstanding the order of
the Administration for their release. As of this writing, the
President of the United States has issued orders releasing at
least 40 detainees, including Ahmed Adnan Ajam who is the
subject of the new Petition. Ironically, under the National
Defense Authorization Act for the Fiscal Years 2011-20131
(“NDAA”), the President is restricted from releasing detainees under the NDAA which was enacted as a partisan
rider to defense budget legislation.2 Consequently, none
of the 40 or more detainees ordered released have actually
been released.
The Petition raises constitutionally compelling objections
to the certification process. These include the objection that
the NDAA rider was a Bill of Attainder and was imposed in
violation of the prohibition against Ex Post Facto laws. The
new claim made is that the NDAA violates the President’s
powers as Commander-in-Chief, particularly as those powers were construed to allow the last President in office to
detain the individuals in the first place. We will look at the
background of these proceedings and the constitutional
arguments being advanced.
The Status of Detainees Ordered Released
The detainees who have been ordered released have not
been charged with any misconduct, in part, because the
government has decided that there is insufficient evidence
to charge them. Therefore, they remain in custody in perpetuity without formal charges and without the chance of
trial. This is a sentence of death in detention in the custody
of the United States Government. The 40 plus detainees
who have been ordered released – most of them years ago
– are nevertheless being held as prisoners with no hope.
Readers of the Santa Barbara Lawyer Magazine may recall
that the Criminal Justice column of December 2011 reported
on the case of Latif v. Barack Obama3 in which the Court of
Appeals for the District of Columbia used the “presumption
12
of government records
regularity” to prevent Mr.
Latif from being released,
despite a federal district
court ruling in his favor,
on the grounds that the
record included a government “intelligence report.”
That “report” was the initial detention report based
on hearsay. The Circuit
Court opinion recognized
that the intelligence report
was “prepared in stressful
Robert Sanger
and chaotic conditions,
filtered through interpreters, subject to transcription errors, and heavily redacted for
national security purposes.” Nevertheless, the Circuit Court
opinion gives the report a presumption of regularity. That
decision was appealed to the United States Supreme Court.
About 10 months after the publication of that Criminal Justice article, Adnan Farhan Latif, the plaintiff who the Circuit
Court had condemned to permanent imprisonment without
trial, died in custody at Guantanamo Bay on September 8,
2012. He was the eighth such detainee to die in custody
without charges and without the hope of trial. Mr. Latif’s
challenge to being held based on the presumed “regularity”
of his initial detention document died with him.
The individual who is the subject of this article and the
new Petition, Ahmed Adnan Ajam, is still alive. He has
been a prisoner at Guantanamo since June 14, 2002 under
difficult conditions. Records released on Wikileaks include
the actual government weight chart for Mr. Ajam which
reflects that his weight has fluctuated wildly, dropping,
in 2004, 115 pounds within what appears to be a two or
three month period. Records from the hunger strike of 2006
are incomplete but show another significant drop in his
weight by November of 2006.4 The records of the government recording his condition in March of 2008 stated that,
“Detainee is in fair health.”5
In Mr. Ajam’s favor, he is reported to be compliant with
the guards and was reassessed not to have been a member
of the Syrian Al-Qaida cell with which he was originally
assessed to be associated. It also appears that he studied
law at the Islamic Studies Institute in Kandahar. Most of the
materials relating to the investigation are still classified and
most of the information relating to Mr. Ajam’s detention
is phrased in general terms, such as, “it is assessed that.”
As with other detainees, what can be seen is based on “assessments” that he might have met certain people or was
Santa Barbara Lawyer
Criminal Justice
in certain places that are in turn “assessed” to be involved
in activities that could be connected to Al-Qaida.
Of course, none of this is to say that Mr. Ajam was not
an enemy combatant. On the record we have available to
us, we simply cannot tell. What is significant is that the
Administration determined that there was insufficient
evidence to charge him or try him and that he should be
released. Nevertheless, the government is still holding Mr.
Ajam as a prisoner with no charges, no trial, and an order
from the President to release him.
The Petition in AHMED ADNAN AJAM (ISN
326), Petitioner v. BARACK OBAMA, et al.
As of this writing, the petition for Writ of Habeas Corpus
filed in the United States District Court for the District of
Columbia is still partially sealed as are most of the underlying documents. According to the docket, the District Court
Judge has issued an order requesting briefing on the legal
issues raised in the habeas petition. Unfortunately, that
order is also under seal.
However, the Petitioner’s Motion for Leave to File Redacted Version of Memorandum of Law on Public Policy
is filed without seal.6 The Motion states concisely the
constitutional grounds of the claims in the habeas petition:
“The propositions of Petitioner’s current motion to amend
are almost entirely public. They are that (a) the Executive
has imprisoned Petitioner for more than a decade; (b) the
Executive has never justified Petitioner’s detention other
than as a claimed exercise of its authority to target Petitioner with military force under Article II, Section 2 of the
Constitution; (c) following a Congressional authorization
for the use of military force, Article II, Section 2 of the
Constitution gives the President sole authority to determine
whether and when to use, or desist from using military force
against otherwise-targetable persons within the scope of
that authorization; (d) in the exercise of his Commanderin-Chief targeting authority, the President determined
almost four years ago that he would desist from targeting
Petitioner with military force; (e) Congress unconstitutionally intruded on the President’s determination by enacting
provisions of the National Defense Authorization Act for
Fiscal Years 20ll-2013, [citations omitted] (“NDAA”); (f)
the NDAA’s certification requirements alternatively constitute an unconstitutional Bill of Attainder; and (g) the
circumstances of Petitioner’s case show that he has suffered
and continues to suffer a direct and immediate injury as a
consequence of Congress’s unconstitutional intrusion. By
amending his petition, Petitioner would seek a declaration
that the NDAA provisions are void and that the President
should be declared free to proceed with desisting in the
September 2013
exercise of military force against Petitioner, including the
transfer of Petitioner abroad to facilitate the same, without
any requirement of certifications being made to Congress.”
Now, of course, the District Court for District of Columbia is the venue in which all of the Guantanamo cases are
filed. The Judges there are dealing with all aspects of this
unfortunate situation, including, claims of torture and, most
recently, a series of cases on the hunger strike and whether
the United States Government can force feed prisoners to
keep them alive. The Court has also heard every other
argument that teams’ dedicated lawyers have made for
their clients. But, as far as we can tell from the unredacted
materials and from other commentaries on the matter, the
specific argument that the NDAA is unconstitutional based
on the argument that the President cannot both have and
be deprived of the power to determine who is an enemy
combatant is a new one. This is coupled with the claim
that the NDAA is a Bill of Attainder.
Bill of Attainder and Ex Post Facto Law
Taking the last argument first, logically there is no way
around the claim that the NDAA is a Bill of Attainder. It is
a fundamental concept of our Constitutional system that
there is a separation of powers. The legislature makes laws
which apply prospectively and the courts provide a forum
for a fair determination of whether or not a crime was
committed, whether the accused committed it, and what
punishment, if any, should be imposed. Article I Section 9 of
the United States Constitution sets forth the structure and
limitations on the legislative branch and states categorically,
“No Bill of Attainder or ex post facto Law shall be passed.”
Article I Section 10 says, “No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of Marque and
Reprisal; coin Money; emit Bills of Credit; make any Thing
but gold and silver Coin a Tender in Payment of Debts; pass
any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.”
(italics added.)7
A simple logical analysis, devoid of emotion (and the politics of fear and hatred),8 leads to the inescapable conclusion
that the NDAA is a bill of attainder and is an ex post facto
law. The NDAA was passed by the legislature. It has the
effect of creating a legislative determination that a specific
class of people will be imprisoned for life despite the fact
they had previously been ordered released. It makes this
legislative determination after the fact. That is a bill of attainder and an ex post facto law. That is what the founders
sought to prohibit.
A toll has been taken on the Constitution historically
by the influence of emotion and the politics of fear and
13
Criminal Justice
hatred. Today, the excuse for making and enforcing these
unconstitutional laws is the fear and hatred of Al-Qaida. In
the 1950’s repressive and unconstitutional laws were made
and enforced based on the fear and hatred of Communists.
For instance, starting with American Communications Association v. Douds, 339 U.S. 382 (1950), the Court struggled
in a series of opinions to find a way to avoid interfering
with the “fight against Communism” by circumventing the
prohibition of bills of attainder and ex post facto laws with
clever rationalizations.
Both the Red Scare and the Al-Qaida Scare were also
exacerbated by xenophobia encouraged by politicians and
the media.9 In the fifties, the public was willing to suspend
disbelief and endorse unconstitutional legislation to “get
tough on communists.” In retrospect, it seems almost
naïve and certainly oppressive. Yet, at the moment, it did
not. Today, we are in the midst of another scare and, once
again, are behaving in a way that future generations will
probably find naïve and oppressive.
Nevertheless, so far, even in the controversial cases of
the 50’s and 60’s, the constitutional prohibition on bills of
attainder and ex post facto laws were still held to apply
where there is legislation imposing clear punishment (e.g.,
life imprisonment), with no ability to escape the punishment (e.g., no equivalent to signing a loyalty oath), for past
conduct (e.g., not for joining a Board after refusing to take
an oath), as to a class of people. The Court dealt with this
in United States v. Brown, 381 U.S. 437 (1965) in a context
similar to Douds holding that an oath under the Taft-Hartley
act constituted a bill of attainder. Since then, the Court has
been even more deferential particularly where it impinged
on First Amendment rights to speech. And in cases like this,
where there is direct imprisonment by legislative enactment, the court has never wavered. We will have a chance
to see if the current politics of fear and hatred will evoke
an even more tortured evasion of these constitutional rights
than the courts were willing to entertain at the height of
McCarthyism.
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Interference with the President’s Constitutional
Powers
In addition, the Petition for Writ of Habeas Corpus in the
Ajam case raises, through a series of claims, the fundamental
issue of Presidential power. It is ironic that the same politicians who were claiming that President George W. Bush
had the power to determine who was an enemy combatant and detain that person without charges or trial were
now claiming that President Barack Obama did not have
the power to determine that they did not meet the criteria
to remain detained over a decade later. In the words of
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14
Santa Barbara Lawyer
Criminal Justice
the Petition: “From the proposition that only the President
can direct the use of military force against a specific target
within the broad scope of a congressional authorization
to use military force, it follows that only the President can
determine whether and when to desist from the use of that
force against a specific target.”
Once again, in the absence of emotions and the politics
of fear and hatred, the logic is unassailable. It is only the
brute force of the party in control of the legislature to promote its own agenda – it is not logic or law – that could
lead to this result. The power to detain enemy combatants
through military force, to the extent it is constitutional to
start with, is an Executive Branch power. There is nothing
in the Constitution that allows the legislature to decide
who to detain or when the President can determine they
should no longer be detained. There is certainly nothing in
the Constitution that allows the legislature to start making
bills of attainder or making ex post fact laws. The “unitary
executive” excuse given by the Bush Administration for
detention (and even for torture) was a claim for Executive
Branch power, not Legislative power. The argument now
that (as a rider to a defense appropriations bill) the legislature can limit the current President from releasing people
the last President detained seems unsupportable as a matter
of logic, law, and fundamental fairness.
Endnotes
1 National Defense Authorization Act for Fiscal Years 20ll-2013,
Pub. L. No. 111-383, $ 1033, 124 Stat.4137 ([an.7,2011); Pub. L.
No. ll2-81, $ 1028, 125 Stat. 1298 (Dec. 31,2011), Pub. L. No. ll2239, $ 1028, 126 Stat. 1632 (Jan. 2,2013)
2 President Obama signed these bills into law. The President said
in “signing statements” that although the restrictions intruded on
his powers, he did not veto the measures because they contained
vital spending authority for U.S. defense operations.
3 Latif v. Obama, 10-5319, 2011 WL 5431524 (D.C. Cir. Oct. 14,
2011).
4 See the .pdf document at Wikileaks, http://wikimedia.org/
wikipedia/commons/a/a3/ISN_326_--_Ahmed_Adnana_Muhammad_Ajam_--_Guantanamo_weights.jpg
5http://wikileaks.org/gitmo/prisoner/326.html
6 Case 1:09-cv-00745-RCL, Document 1725, Filed 07/10/1
7 Most, if not all, states of the United States have a similar provision
in their state constitutions.
8 There has been troubling litigation in this area, particularly where
hot political topics were involved. For instance, see American Communications Association v. Douds, 339 U.S. 382 (1950) and United
States v. Brown, 381 U.S. 437 (1965).
9 In the fifties, Senator McCarthy’s hearings before the House
Un-American Activities Committee were covered heavily by the
press and eventually network news. Today, we have Infotainment
News and shock commentators. There are similarities and differences but there is no doubt that the media has had an effect on
public fear and hatred in both situations.
Conclusion
Time will tell how the courts handle this in the immediate
future and how history will evaluate their conduct later. If
these issues get to the Supreme Court, will there be a five
to four decision, essentially along political lines? Or will
there be a logical and legal application of the constitutional
prohibitions on bills of attainder and ex post facto laws?
Will the courts, including the Supreme Court, honor the
Separation of Powers doctrine and prohibit the legislature
from usurping the role of both the Executive and the Judicial
Branches? Will the courts succumb to the politics of the
moment and be subjected to the disapprobation of history?
Or will they take a principled approach and find the NDAA
rider provisions unconstitutional? We will see.
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Justice (CACJ), the statewide criminal defense lawyers’ organization. He is a Director of Death Penalty Focus and is a Member of
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Legal Updates
California
Legislation Pending
U
PDATE Assembly Bill 1266 signed by the Governor on August 12, 2013. School Success and
Opportunity Act (Ammiano) The bill will become effective on January 1, 2014, and will allow transgender students to fully participate in all school activities,
programs and facilities. AB 1266 will ensure that students
who are transgender have equal access to facilities and
activities, like sports teams, that match their gender.
Senate Bill 4. (Pavley) This bill addresses hydraulic
fracturing, otherwise known as “fracking.” The bill would
require an independent scientific study of well stimulation
– specifically including acidization and fracking – addressing occupational, public, and environmental health and
safety be conducted by January 1, 2015. The study would
address induced seismicity associated with fracking. The
bill would also direct the California Division of Oil Gas and
Geothermal Resources (DOGGR) to enact comprehensive
hydraulic fracturing regulations, in consultation with additional regulators, which include advanced public notice
of planned fracking activities and fracking fluid chemical
disclosure. The bill would also require that the name and
quantity of each chemical species be publicly-available. The
bill would also require that DOGGR evaluate each trade
secret claim using specified criteria. Members of the state
Senate Natural Resources and Water Committee voted to
pass Senate Bill. On August 6th the bill was read a second
time and amended, then re-referred to the Assembly Appropriations Committee.
Senate Bill 491. (Hernandez) This bill would increase
nurse practitioners’ scope of practice by allowing them to
practice independently of physicians in certain medical
facilities, such as hospitals, clinics, and skilled-nursing facilities. The author removed language in the bill that would
have allowed nurse practitioners to operate completely
independent of physician oversight after 6,240 hours of
supervised practice. Following that change, this bill passed
during reconsideration in an Assembly committee August
13th after failing to earn enough votes the prior week. SB
491 is headed to the Assembly Appropriations Committee.
Senate Bill 493. (Hernandez) This bill would increase
the role of pharmacists by allowing them to give immunizations and prescribe some drugs. This bill passed the
Assembly Health Committee on August 13th and is headed
to the Assembly Appropriations Committee.
Review Pending
Case: Robey v. Superior Court (2013) 56 Cal.4 1218
Status: Decided June, 27, 2013
Issue Presented: Petition for review after the Court of
Appeal granted a petition for peremptory writ of mandate.
An issue initially identified by the court was, “Could police conduct a warrantless search of a package smelling of
marijuana under a ‘plain smell’ exception to the warrant
requirement?” The Court decided, “[S]eizure of the package
[consigned for shipment] was lawful but the warrantless
search of the sealed package was not justified by exigent
circumstances and . . . the District Attorney forfeited the
argument that the plain smell of marijuana alone justified
the search without a warrant.”
Local Counsel: Raimundo Montes de Oca, Patricia Ann
Dark, for Petitioner Kewhan Robey; Joyce Dudley, Michael
Carrozzo for real party in interest.
th
16
CALIFORNIA REGULATION OF ONLINE POKER UNLIKELY TO PASS THIS SESSION The California General
Assembly is set to dismiss their current session on September 6th. Therefore, any bill looking to pass this session
would have to be through committee and on the floor of
the General Assembly for a vote before September 6th. The
following three bills are currently in committee or proposed
on the subject of regulation of online poker: First, Senate
Bill 678, State Senator Lou Correa’s “Authorization and
Regulation of Internet Poker and Consumer Protection Act
of 2013.” Second, Senate Bill 51, Senator Roderick Wright’s
“Internet Gambling Consumer Protection and Public-Private
Partnership Act of 2013.” And, finally, a draft bill from the
California Indian tribes. All three bills have not passed the
committee phase of the legislative process. Barring a special
session of the General Assembly, these bills would have to
be reintroduced in 2014 for consideration.
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17
Mrs. Huseman, Hon. Eugene Huseman (ret.), Hon. William
Gordon (ret.), Carol Gordon and Jackie Stevens
Tom Hinshaw and Judge Thomas Anderle
Gary Blair’s Retirement Party
Gary Blair, Angela Braun, Monday Ayala and Connie Gonzalez
Glenn Robertson and Judge Frank Ochoa
Judge Colleen Sterne, Ann Anderson and
Betty L. Jeppesen
Hon. Bruce Dodds (ret.), Hon. William Gordon (ret.),
Gary Blair and Darrel Parker
18
Santa Barbara Lawyer
Glenn Robertson, Paula Waldman and Michael Carty
Marilyn Metzner and Judge Tom Adams
Santa Barbara
Superior Court
Judges thank
Gary Blair for
his service
Gary Blair then and now
The crowd looks on
September 2013
19
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25
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20
Santa Barbara Lawyer
Pro Bono
Change is Coming:
Requiring Pro Bono
Prior to Admission
to the Bar
By Jaqueline Hall
O
n May 1, 2012, following a report by the New
York State Bar Association on lawyers and legal
education, Chief Judge Jonathan Lippman of
New York announced that, beginning in 2013, prospective
attorneys would be required to spend 50 hours performing pro bono work before admission to the New York Bar.
When drafting the guidelines for this new admissions requirement, the Advisory Committee on New York State Pro
Bono Bar Admission Requirements stated that by requiring
50 hours of highly supervised pro bono work, the State of
New York was not only improving access to justice, but
was helping prospective attorneys develop valuable skills.
Not to be outdone by New York, shortly after Chief Judge
Lippman’s announcement, the State Bar of California created a task force to investigate creating new requirements
for admission to the Bar in California. In June, the State
Bar of California Task Force on Admissions Regulation
Reform released its Phase I Final Report. The State Bar
is currently seeking public comment on the report. The
proposed reforms include a pre-admission competency
training requirement, a post-admission MCLE requirement
for newly admitted attorneys, and a pre- or post-admission
pro bono requirement.
One of the findings of the Task Force was that “effective
and meaningful orientation to the legal profession for new
lawyers involves more than simply teaching them such
day-to-day details as how to find the courthouse, how to
format pleadings properly… It also involves orientation
in the values of professionalism and the identity of what
it means to have the privilege of holding a law license.”1
The Task Force felt that requiring new admittees to spend
some time either in law school or in the first year of practice
serving individuals who cannot afford an attorney would
inculcate values of professionalism. For these reasons, the
Task Force is recommending that new admittees be required
to complete 50 hours of legal services in the pro bono and
modest means areas.
The proposed change in California envisions allowing
prospective or new attorneys to complete the 50 hours
September 2013
by doing either traditional pro bono work (work
done without expectation
of payment) or so-called
“low bono” work. There
are many individuals who
do not qualify for pro bono
legal assistance, but who
cannot afford traditionally
priced legal services. Modest means legal services,
often referred to as “low
bono,” involve handling
legal matters for such indiJacqueline Hall
viduals at greatly reduced
rates. Such services are vitally important in the areas of family law, bankruptcy,
unlawful detainer, and breach of contract. The Task Force
recognized that pro bono work is a core value of our profession, but wants to go further to increase the number of
individuals in the state who can access legal help. By allowing low-bono work to count toward the new proposed
admission requirement, the Task Force hopes to introduce
young lawyers to an area of private, for-pay law practice
focused on a middle-class segment of the population.
With the inclusion of low-bono work, the proposed new
admission requirement involves the following:
50 hours of legal services provided in the pro bono or
modest means/low bono areas;
Completed prior to admission or within the first year of
licensure;
Completed through a Bar-certified Pro Bono Program
or Modest Means Program, or under the supervision of a
Bar-certified Mentor; and
Certification by the Bar applicant or new admittee of
compliance with the requirement.
For those who choose to fulfill all or some of the requirement post-admission, failure to provide satisfactory
certification would result in license suspension.2
Key to the success of this requirement will be adequate
supervision of the applicants or new admittees. Many applicants will complete this requirement during law school
through clinics, internships, and externships, but some will
choose to complete the requirement during their first year
of admission. For those who chose to complete the requirement after admission, it is important that experienced attorneys are willing to mentor and supervise them. Without
proper supervision, pro bono or modest means clients face
Continued on page 29
21
Legal Updates
emcee, and KEYT-TV anchorwoman Debby Davison as the
keynote speaker.
This Month in
Santa Barbara
Lawyer History
5 Years Ago: September 2008
20 Years Ago: September 1993
•The publication was known by its former name, The
Quibbler.
•SBWL announced its 5th Anniversary celebration which
took place on September 23, 1993, and featured Court of
Appeal Justice Joan Dempsey Klein and then CWL President
Angela Bradstreet.
•The publication included a compilation of “practice
guidelines” for each of the south coast civil departments
provided by the Bench & Bar Committee. Respondents
included Judges Ronald Stevens, Patrick McMahon, Bruce
Dodds, and Thomas Adams.
•The magazine bore its current name.
•Legal Aid’s 2nd Annual Heroes for Justice event was covered. Dean Erwin Chemerinsky was the keynote speaker,
and the Honorees were the late Hon. Joseph L. Lodge,
Hon. Rodney S. Melville, social worker Ken Williams, and
attorney Linda Kropp.
•Donna Lewis (current SBCBA President) provided a
preview of the 2009 Bench & Bar Conference. Highlights
were the Judge’s forum which included Justice Steven Perren and Judge Colleen Toy-White, an intellectual property
session taught by Matthew Berger and Preston Marx, a
bankruptcy session taught by David Commons, and a real
estate session taught by John Thyne.
•Legal Aid Foundation announced its new President,
Lynn E. Goebel.
15 Years Ago: September 1998
•The publication was known by its former name, The
Quibbler.
•An article featuring Judge Dodds’ retirement party at
the zoo was featured on the front page.
•Then SBCBA President, Jim Herman (now Judge), wrote
an article discussing the affects of El Niño on the Bench and
Bar.
•SBWL announced its 10th Anniversary Celebration Dinner which featured past president, Susan McCollum, as the
September 2008 Santa Barbara Lawyer cover depicts Legal Aid’s
Heros for Justice Honorees and Presenters, from left to right, Marilyn
Metzner, Hon. Thomas P. Anderle, Sheila Lodge, Dean Erwin
Chemerinsky, Ken Williams, Linda Krop, Ellen Goldman, Hon.
Rodney S. Melville, and Marilyn Gilbert. Background, LAF Executive Director Ellen Goodstein.
22
Santa Barbara Lawyer
September 2013
23
Section Notice
Santa Barbara County Bar Association Estate Planning/Probate Law Section Presents:
The Art of the Conversation – Presented By David Solie
Date/Time:
Tuesday, September 17, 2013, 12:00 to 1:30 pm
Place:
Santa Barbara College of Law
20 East Victoria Street (between State & Anacapa)
Santa Barbara, CA 93101
Speaker:
David Solie
The Art of the Conversation ‐ Details of Topic:
Boomers are crossing the threshold into the 50‐65 age group at a rate of 12,000 a day ‐ a turning point for how they will view their future years. Add into the mix a persistently turbulent economy and you have a complex dynamic that requires expert navigation and conversation skills. Advisors need to re‐evaluate their understanding of this key demographic and the communication strategies they use to broach subjects that could, just by their discussion, draw lines in the sand.
David Solie is an author, educator, speaker, and thought leader in communicating with seniors. His book How To Say It To Seniors: Closing the Communication Gap with Our Elders is a landmark text that has been read and reread by legions of baby boomers searching for a better approach to working with their aging parents. It offers insights and proven, practical communication strategies that help professionals and laypersons alike interact more compassionately and effectively with seniors.
David Solie is an authority on communication between generations, particularly with seniors. His keynote presentations have won critical acclaim from audiences throughout North America. Based on his pioneering research on the psychology of the second half of life, David will share a breakthrough perspective on the real challenges and changes that boomers are facing as they head towards 65. He will provide practical strategies to enhance the dialogue with your boomer clients to help them successfully negotiate the transition into this later stage of life.
MCLE:
1 hour credit (pending approval)
Co‐Chairs:
David Graff, Esq., Allen & Kimbell & Brooke Cleary, Esq., Ambrecht & Associates
Lunch:
Variety of sandwiches, pasta, cookies and drinks catered by South Coast Deli Price:
$25.00 for SBCBA Members, $30.00 for Non‐Members
Please RSVP for this event before Friday, September 6, 2013, by e‐mail to [email protected] or by telephone to Brandy Bartosh at (805) 963‐8611 Checks should be made payable to the Santa Barbara County Bar Association. Checks should be mailed to Allen & Kimbell, Attn: Brandy Bartosh, 317 E. Carrillo Street, Santa Barbara, CA 93101.
24
Santa Barbara Lawyer
 Awards for access to
justice to Ellen
Goodstein, Judge
George Eskin, and the
firm of Brownstein
Hyatt Farber Schreck
 Introduction of
attorneys new to the
legal community
The Santa Barbara County Bar Association
cordially invites
Members of the Bench and Bar, Spouses and Guests
to join us for our
2013Annual Dinner
Featuring: Local wines and
cuisine with Greek flair
When: Friday, 11-1-2013
5:30 pm Reception
6:30 pm Dinner
Reservation Form
Where:
Greek Orthodox Center
1205 San Antonio Creek Rd
Santa Barbara
Payments
received 
Members
Nonmembers
On or before
After
10-15-2013 10-15-2013
$99
$105
$110
$115
Name
Price
Check if Vegetarian
__________________________________ Member or NonMbr
$_________
 Check if Vegetarian
__________________________________ Member or NonMbr
$_________
Total Enclosed: $_________
To reserve & pay via USPS, please complete this form and send with your
check payable to: SBCBA, 15 West Carrillo St., Suite 106, Santa Barbara, CA
93101. For additional reservations, attach additional sheet. To reserve and pay
by credit card, or if you have questions, call SBCBA at (805) 569-5511. Fees
paid are nonrefundable.
September 2013
25
26
Santa Barbara Lawyer
The In-House Counsel & Corporate Law
Section and The Intellectual Property/
Technology Business Section of the Santa
Barbara County Bar Association present:
Information Governance and
Downstream eDiscovery
The California Coast Chapter of the
American Board of Trial AdvocatesPresents
The James Otis Lecture Program
The American Jury Trial:
A European Perspective
How can you get a handle on the data in your environment before litigation arises or regulatory compliance
triggers occur? We will discuss best practices and provide
concrete examples for records retention, identifying
information owners and custodians, and data mapping.
Join us to learn how records policies can reduce the
volume of discovered and collected data and the overall
costs and risks associated with eDiscovery. Join a distinguished panel of European and American lawyers as they discuss the European Civil Trial System and
how it compares to the American Civil Jury model. Do
the reasons for the 7th Amendment’s right to a civil jury
trial still exist today?
Panelists: Oskar Riedmeyer (Vice President, German Bar
Association), Dr. Gerhard Ries (Professor of Law, University
of Munich), John H. Howard, Esq. (Past President, ABOTA
California Central Coast Chapter), Hon. Steven Z. Perren
(Associate Justice, California Court of Appeal)
Speaker
Date and Time
Shannon Smith, General Counsel and Director of
Information Governance, Globanet
Shannon Smith manages a portfolio of the company’s
eDiscovery and compliance offerings, including services to support the Clearwell eDiscovery platform.
She also consults directly with corporate legal teams
to develop policies and processes to support information governance programs. An experienced attorney,
Ms. Smith brings an extensive knowledge of regulatory
compliance, litigation readiness, and records management
issues to her role. She is a Certified eDiscovery Specialist
and holds both a J.D. and MBA from Loyola Marymount
University.
Saturday, September 21, 2013, 12:00 pm
Program
12:30 p.m. to 2:30 p.m.
Location
Santa Barbara College of Law, 20 East Victoria Street,
Santa Barbara, CA
Reservations
Reserve via email to Eric Berg, Esq. by September 13,
2013, [email protected].
Cost and Payment
$50.00 – includes lunch
Mail Checks by September 13, 2013, payable to ABOTA
c/o Brad Ginder, Esq. Hollister & Brace, 1126 Santa Barbara Street, Santa Barbara, CA 93101
Date and Time
Tuesday, September 17, 12 noon
MCLE
Location
2 hours credit
Santa Barbara College of Law, Room 2, 20 E. Victoria St.
Reservations
Reserve via email to Chris Kopitzke,
Chair of Intellectual Property/Technology Business Section, by Thursday, September 12, [email protected]
Edward Jones ranked “Highest in
Investor Satisfaction with Full Service
Brokerage Firms, Two Years in a Row”
Cost and Payment
$25.00 – includes lunch
Mail checks to arrive by Monday, September 16,
payable to Betty Jeppesen, Chair of In-House Counsel &
Corporate Law Section,
800 Garden Street, Suite K, Santa Barbara, CA 93101
Visit jdpower.com
Daniel J De Meyer
Financial Advisor
.
125 E De La Guerra St Ste 101
Santa Barbara, CA 93101
805-564-0011
MCLE
One hour credit applied for
September 2013
27
www.edwardjones.com
Member SIPC
The Santa Barbara County Bar Foundation Presents:
Id., Ibid., and all that Stuff:
What You Always Wanted to Know About
Legal Citation Basics,
But Never Dared to Ask.
Speaker:
John Derrick,
Specialist in
Appellate Law
When: 12:00 pm to 1:15 pm, Thursday,
September 19th, 2013
Where: The Santa Barbara College of the Law
One MCLE Unit. Costs and payment: $30, please mail checks by Tuesday, Sept. 17, 2013 to Brandi Redman, 1021
Laguna St. #8, Santa Barbara, CA 93101. Please call 805-252-8418 for more information.
28
Santa Barbara Lawyer
Family Law Section of the Santa Barbara County Bar Association
Your Clients, Your Firm, You: “Obama Care”
There has been a great deal of discussion, some of it heated, about the Affordable Care Act, expressing a wide range
of views and concerns. As 2014 approaches, we are about to move beyond speculation and into implementation, so it
is time to separate fact from fiction. One thing is certain; the ACA will affect everyone in some way.
COME LEARN HOW OBAMACARE WILL AFFECT YOU AND YOUR CLIENTS.
Date and Time November 7, 2013, 12:00-1:15
Location
SB College of Law
Cost
$30 SBCBA members; $40 non-members; One Hour of MCLE Credit; Lunch will be provided: assorted sandwiches,
salads, brownies, drinks. Please note in your rsvp if you require a vegan/vegetarian/gluten-free lunch.
Speaker
Local attorney Claude Dorais is an insurance business, regulatory and risk management expert. He is a member of
the Federation of Regulatory Counsel and former co-chair of the SBCBA’s Estate Planning Section. He has represented
clients before the insurance regulatory authorities of all 50 States and the District of Columbia. Those clients include
many types of insurers and risk-spreading and risk-bearing organizations, including several of the health insurers and
HMOs which expect to offer coverage under the new legislation.
RSVP
To [email protected] by October 31st and mail checks (payable to SBCBA) to: Family Law Section
c/o Dorais, McFarland, Grattan & Polinsky, Law Corp.
25 East Anapamu Street, 2nd Floor
Santa Barbara, CA 93101
Pro Bono News
Classifieds
Self-employed bookkeeper with legal experience and excellent references. Experienced in QuickBooks, TimeSlips,
Excel, etc. Please call Jane Banick at telephone: 805-963-6994
or cellphone: 805-452-6347
SHARE ATTORNEY SUITE
225 E. Carrillo St. #202
Large office with shared common area
reception and secretary area
copy machine and fax included
covered parking space
3 minutes to Courthouse
(805) 963-4484 available now
September 2013
Hall, continued from page 21
a serious risk of harm that must be avoided.
I urge all attorneys to review the report and consider
becoming a Bar-certified Mentor for new admittees seeking to satisfy the pro bono/modest means requirement
post-admission. The State Bar is seeking public comment
on the Task Force’s Report through September 5. A copy
of the report and information on where to send comments
can be found at http://www.calbar.ca.gov/AboutUs/PublicComment/201307.aspx. The Task Force hopes that the
new requirements will be phased in gradually, with the pro
bono/modest means requirement taking effect in 2016.
Endnotes
1 State Bar of California Task Force on Admissions Regulation
Reform: Phase I Final Report (June 24, 2013) [hereinafter Task
Force Report], page 10.
2 Task Force Report, page 25.
29
Legal Community
Attorney Tom Minehan of
the firm Minehan, McFaul
& Fitch, LLP has just re-
The Santa Barbara Paralegal Association will host
its 4th Annual MCLE Conference (made possible with
the assistance of the Santa Barbara District Attorney’s Office) at the Historic Santa Barbara County
Courthouse on Saturday, September 21, 2013. If you
have questions or wish to register, please communicate
with this year’s MCLE Conference co-chairs, Kimberly Mumford ([email protected]) and/or Monday
Ayala ([email protected]).
S P EC IAL ANNOUNCEM EN T
2013 Santa Barbara County Bar Association
Award Recipients
Frank Crandall Award
Will be presented to
Brownstein Farber Hyatt Schreck
For facilitating pro bono services to community non-profit
organizations, based on services benefiting low-income
persons, community project leadership, nature and quality
of work and hours per attorneys, percent of firm attorneys
involved in pro bono work, and existence of a policy encouraging pro bono activity.
tired from practice after an
extensive and distinguished
career. Tom practiced in Santa
Barbara beginning in the late
1970’s as part of the Santa
Barbara County office of the
firm Ives, Kirwan & Dibble.
In 1997, Tom, along with Jim
McFaul and Jerry McLinn,
amicably parted ways from
Ives, Kirwan & Dibble to found the firm Minehan, McFaul
& McLinn, LLP (which later became Minehan, McFaul & Fitch
when Jerry McLinn retired and Tom Fitch joined as a partner).
Tom spent the remainder of his career at that firm.
Tom was (and still is) well-liked and highly respected by
all who have worked either alongside or across the courtroom from him and by all who know him in both professional and personal settings. His expertise and thoughtful,
fair, and sensible approach to the law and cases of all sizes
will be missed by all, not least of which the attorneys and
staff who remain at Minehan, McFaul & Fitch (whose ranks
include the editor of this column).
Tom is currently enjoying the start of his retirement by
visiting Ireland with his wife Janet (Tom is more “Irish” than
many citizens of that nation—all four of his grandparents were
born there). May that trip be the first step towards a fun and
rewarding next phase of life’s journey!
Interested in giving back to your community? The Santa
Barbara County Bar Foundation seeks new board member applicants. Those interested can apply by October
15, 2013. Contact Brandi Redman at (805) 252-8418 or
[email protected] for more information.
The Santa Barbara Barristers recently hosted an MCLE
John T. Rickard Judicial Service Award
Will be presented to Honorable George C. Eskin
For outstanding contributions to the judiciary and the local
court system.
Richard Abbe Humanitarian Award
Will be presented to Ellen Goodstein
For life, leadership and conduct that exemplify humanitarian principles.
Join us at the SBCBA Annual Dinner for the presentation
of these Awards. See page 25 for more information.
30
presented by the Hon. Judge Thomas Adams of the
Santa Barbara Superior Court on effective oral advocacy
skills and tips. The Barristers would like to thank Judge
Adams, the Santa Barbara College of Law, and all
who attended for making this a successful, educational,
and entertaining event and hope to see everyone at the
next MCLE.
If you have news to report you are invited to “Make a Motion!”
Send one to two paragraphs for consideration by the editorial deadline to our Motions editor, Mike Pasternak at [email protected].
Santa Barbara Lawyer
The Santa Barbara
A Reception with the
County Bar
Appellate Justices of
Presents:
Association
Division Six
Please join us on Wednesday, October 23, 2013
6:00 pm – 8:00pm
At the Canary Hotel – 31 West Carrillo Street, Santa Barbara
1 MCLE Credit
SBCBA Members: $49 (After October 1st, $59)
Non-Members: $59 (After October 1st, $69)
Students/Paralegals: $25
~~
Please mail completed form along with your check payable to:
Santa Barbara County Bar Association
15 West Carrillo Street, Santa Barbara, CA 93101
Name(s) ____________________________________________
______________________________________________
Phone Number______________________________________
Amount Enclosed___________________________________
September 2013
31
Legal News
Verdicts and
Decisions
Callahan v. Dillon
Santa Barbara Superior Court, Cook Division
CASE NUMBER:
1389432
TYPE OF CASE:
Breach of contract
TYPE OF PROCEEDING:
Jury Trial
JUDGE:
Hon. James F. Rigali
LENGTH OF TRIAL:5 days
LENGTH OF DELIBERATIONS:
45 minutes
DATE OF VERDICT:
July 2, 2013
PLAINTIFFS:
Tad P. Callahan, M.D., and the Center for Women’s Health and
Family Birth, a Medical Group, Inc.
PLAINTIFFS’ COUNSEL:
Kristine L. Mollenkopf, Mollenkopf Law Group
DEFENDANTS:
Keith Dillon, M.D., and Keith O. Dillon, M.D., Inc.
DEFENDANTS’ COUNSEL:
Eugene J. Martinez
EXPERTS:
For Plaintiffs: None; For Defendants: Paige Covell (medical billing and practices)
OVERVIEW OF CASE: The parties are medical doctors (and their medical corporations) practicing obstetrics and gynecology. Dr. Callahan invited Dr. Dillon to move from Bakersfield to work in Dr. Callahan’s office in Santa Maria. In July
of 2006, the parties entered into an agreement whereby Dr. Dillon agreed to pay Dr. Callahan on a monthly basis for
certain office overhead and operating expenses incurred in the ordinary course of business.
FACTS AND CONTENTIONS: Plaintiffs contended Defendants breached their contract by failing to pay $58,455.30 due
and owing at the time the agreement, as modified during the course of their association, that was terminated in October
of 2010. Defendants denied owing anything, and alternatively claimed Plaintiff/Cross-Defendants’ staff had failed to
timely and properly bill for Dr. Dillon’s services to health insurance companies, resulting in substantial economic losses
to Dr. Dillon. Dr. Dillon also alleged Dr. Callahan forced him to utilize the billing system in place in the office, and refused to allow Dr. Dillon to retain his own billing staff or service, and otherwise took advantage of Dr. Dillon’s weaker
position in the arrangement.
SUMMARY OF CLAIMED DAMAGES: Dr. Callahan claimed $58,455.30 due and owing. Dr. Dillon alleged substantial
economic losses as an offset, which were not quantified by his expert, Paige Covell.
RESULT: For Plaintiff/Cross-Defendant Dr. Callahan on all five special verdict forms and causes of action; specifically that
(1) Dr. Callahan did all, or substantially all, of the significant things that the contract required him to do; all the conditions
were required for Dr. Dillon’s performance occurred; Dr. Dillon failed to do something that the contract required him to
do; and Dr. Callahan was harmed in the amount of $58,455.30; (2) Dr. Callahan kept an account of the debits and credits
involved in the transactions and Dr. Dillon owed Dr. Callahan $58,455.30 on the open book account; and (3) Dr. Callahan
did not use a wrongful act or threat to pressure Dr. Dillon into consenting to the contract. Judgment included$9,474.19
in costs, inclusive of $1,000.00 as reasonable attorney’s fees pursuant to California Civil Code § 1717.5, for a total judgment of $67,929.49.
32
Santa Barbara Lawyer
September 2013
33
September 2013
Calendar
12 345 67
3 Santa Barbara Lawyer Submission Deadline
8 9 101112 1314
1516 171819 2021
22 23 242526 2728
29 30
17 SBCBA Estate Planning/Probate Law Section MCLE
Luncehon “Art of Conversation”
17 SBCBA In-House Counsel & Corporate Law Section
and Intellectual Property/Technology Business
Section Section MCLE Luncehon “Information
Governance and Downstream eDiscovery”
17 Gideon’s Trumpet Screening, Legal Aid Foundation
21 American Board of Trial Lawyers “James Otis
Lecture Program”
21 SB Paralegal Association MCLE Conference
26 SBCBA ADR Section MCLE Evening “Mediating
Insurance Cases”
ATTORNEYS: STRENGTHEN YOUR
TEAM WITH PARALEGAL TRAINING.
Lawyer Referral
Service
Fall 2013 courses
Case Management
Criminal Law
Ethics for the Paralegal
Fundamentals of Paralegal Studies
Tort Law for Paralegals
805.569.9400
Santa Barbara County’s ONLY State Bar Certified
Lawyer Referral Service • A Public Service of the
Santa Barbara County Bar Association
UCSANTABARBARA
EXTENSION
PARALEGAL PROFESSIONAL
CERTIFICATE PROGRAM
Classes begin Sept. 23.
For questions regarding
the program, contact
[email protected],
893-7440.
To enroll call 893-4200 or
visit extension.ucsb.edu
2013 SBCBA SECTION HEADS
Alternative Dispute Resolution
David C. Peterson
441-5884
[email protected]
Bench & Bar Relations
James Griffith
[email protected]
308-0178
Civil Litigation
Naomi Dewey
[email protected]
966-7422
Client Relations
Thomas Hinshaw [email protected]
Scott Campbell
[email protected]
Saji Gunawardane
[email protected]
Criminal Law
Catherine Swysen
[email protected]
Brian Cota
[email protected]
729-2526
963-9721
845-4000
962-4887
Debtor/Creditor
Robert Hurlbett
[email protected]
Reed Olmstead [email protected]
963-9111
963-9111
Elder Law
Denise Platt
[email protected]
Russ Balisok
[email protected]
682-8271
(818) 550-7890
Employment Law
Kimberly Cole
[email protected]
Estate Planning/Probate
Brooke Cleary
[email protected]
David Graff
[email protected]
845-4581
965-1329
963-8611
568-2424
34
Santa Barbara Lawyer
Family Law
Maureen Grattan
[email protected]
965-2288
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
Joshua P. Rabinowitz [email protected]
Bret Stone [email protected]
Taxation
Peter Muzinich [email protected]
963-0755
898-9700
963-9721

Victoria Lindenauer, Esq.
MEDIATOR


Streamlined
Approach
Results
Cost Effective
Over 25 years PI litigation
on the Central Coast
Trained Mediator:
Straus Institute
Pepperdine Univ.
Mediation Panelist:
Santa Barbara, Ventura
San Luis Obispo,
Resolute Systems, LLC
805.730.1959 | www.lindenauermediation.com
[email protected]






        
        

• 
• 
• 
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
 •

• 
 • 
 
• 
 • 

• 
 • 


 • 
• 

• 

• 
• 

 • 
Robert J. Rodino, Ph.D.
Real Estate Expert Witness
Research & Testimony
All Major Property Types
Acquisitions & Dispositions, Development
Property Mgmt, Investment Analysis, Brokerage
Affiliate Member Santa Barbara Bar Association
[email protected]
www.RodinoAssociates.com
310-459-9474
310-614-2193
Connecting
x
ATTORNEYS • PARALEGALS • LEGAL STAFF
confidential
employment
placement
September 2013
35
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
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 22 years and a Real Estate Broker with
my own company for over 19 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 20th 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 $500,000,000
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]
36
Santa Barbara Lawyer