Santa BarbaraLawyer - Santa Barbara County Bar Association

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Santa Barbara
Official Publication of the Santa Barbara County Bar Association
September 2011 • Issue 468
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
September 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
T: 962-4887; F: 963-7311
[email protected]
Donna Lewis
Secretary
Attorney at Law
789 North Ontare Road
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
T: 879-7513; F: 879-4006
[email protected]
Matthew Clarke
Christman, Kelley & Clarke
831 State Street
T: 884-9922; F: 866-611-9852
[email protected]
William Duval
Events Committee
Bench & Bar Relations
Attorney At Law
1114 State Street, Ste. 240
T: 963-9641; F: 963-4071
Rebecca Eggeman
Events Committee
Attorney at Law
315 Meigs Road, Ste. A-378
T: 626-0026; F: 626-0027
[email protected]
Herb Fox
Law Office of Herb Fox
15 W. Carrillo Street, Ste. 211
T: 899-4777; F: 899-2121
[email protected]
Jennifer Hanrahan
Bench & Bar
Attorney At Law
657 Del Parque Drive, Ste. E
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
T: 637-3492
[email protected]
Brandi Redman
Bench & Bar
Awards & Board Development
Attorney & Counselor at Law
1021 Laguna Street, Apt. 8
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
County Counsel Of Santa
Barbara
105 E Anapamu Street, Rm 201
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
Laura Dewey
Bruce W. Hogan
Abbe A. Kingston
Donna Lewis
Angela D. Roach
Robert Sanger
Marrianne Stein
L. Michael Zinser
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
T: 569-5511; F: 569-2888
[email protected]
Submit all EDITORIAL matter to
[email protected]
with “submissIon” in the email
subject line.
Mission Statement
Submit all MOTIONS matter to
Michael Pasternak at
[email protected].
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.
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]
4
Santa Barbara
Official Publication of the Santa Barbara County Bar Association
September 2011 • Issue 468
Articles
Lawyer
About the Cover
7 In Memory of Joseph A. Martinez, By Abbe A. Kingston and
Bruce W. Hogan
8 Paul D. Fritz: July 20, 1941 - July 10, 2011
9 William Carl Gans, Jr.: July 7, 1949 - August 2, 2011
10 A Horseback View of the New Criminal Justice
Realignment Law (AB 109) Effective October 1, 2011,
By Robert Sanger
Jeff Young submitted the cover photo for the September
magazine. Jeff took the photo of this beautiful lake at 8500
feet of elevation. Jeff is Co-Founder of Heal the Ocean and
has been on the Board of Central Coast Regional Water
Quality Control Board since 2000 and the Chair since 2006.
Jeff’s practice is almost entirely plaintiff’s personal injury.
12 California Women Lawyers Select Hannah-Beth
Jackson as 2011 Recipient of Fay Stender Award, By
Laura Dewey
SFSB_SBLaywers_Inskeep
7/21/10
10:13 AM
Page 1
14 “Way Cool” Twitter Does Not Protect the Inappropriate, By L. Michael Zinser
Jerry Inskeep
died in 2009.
16 Mental Retardation and Being Put to Death by the
State, Part Two, By Robert Sanger
19 Show Me the Money: A Harrowing Fiscal Tour with
State Controller John Chiang, By Donna Lewis
23 SBCBA Liaison to Affiliate and Legal Community
Organizations, By Angela D. Roach
27 First Annual ‘Food From The Bar’ Drive A Major Success!, By Marianne Stein and Angela Roach
This fall, he will
send local students
off to college.
Sections
J. Jerry Inskeep, Jr was an
adventurer and a committed and
caring philanthropist. He and his
wife Jackie started a fund with the
Scholarship Foundation to invest
in students from their community.
When Jerry passed away he left a
$4 million bequest from his trust
to the Inskeep Scholarship Fund.
We salute Jerry Inskeep for his
outstanding dedication to
providing opportunities for
deserving students.
27 Section Notices
WHAT LEGACY WILL YOU LEAVE?
30 Calendar
You or your clients can establish a scholarship fund now or
for the future. Contact Colette Hadley, Executive Director
at (805) 687-6065 or [email protected]
Scholarship Foundation of Santa Barbara
www.sbscholarship.org
September 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
Named a 2010 Southern California Superlawyer®!
www.santabarbaraappeals.com
To
15
info
[email protected]
6
In Memoriam
In Memory of
Joseph A. Martinez
W
e are sad to report that our colleague, partner and
friend, Joe Martinez, passed away on July 8, 2011,
surrounded by his family. He is survived by his
wife, Linda, his daughters, Caroline Murugan and Sarah
Martinez, and his granddaughter, Leila. He was a devoted
husband, and a loving father and grandfather.
We had the privilege of practicing law with Joe for thirtyfive years. He was an animated and exceptional friend and
law partner. He was dedicated to those he represented and
often went beyond the call of duty, carefully explaining
our system of jurisprudence to his many foreign born clients, and naturally accepting the role of both attorney and
counselor. His clients were most loyal to him; for many of
them, his representation lasted not years, but generations.
Throughout his legal career, he remained committed to
social change and motivated by justice rather than simply
monetary gain. He was active in the Hispanic Law Society
September 2011
and Santa Barbara County Teen Court, a Board Member of
Casa De La Raza, and served as a legal mentor for numerous students. He was appointed by Former Governor Pete
Wilson to the Medical Quality Assurance Board and served
a three-year term.
Joe was proud of his family history and never forgot
his humble origins. He was raised in the Coachella Valley
picking grapes alongside his five brothers and sisters. In his
office, he prominently displayed a photograph taken when
he was eight-years-old working in a grape processing plant.
From this background, he went on to military service in
Germany and later graduation from UCLA School of Law.
Early in our partnership, we realized Joe’s uniqueness.
After successfully representing a Mexican widow in lengthy
real estate litigation, he secured a favorable financial award,
and our firm naturally looked forward to the settlement.
But Joe, instead of sending a large bill to his client, agreed
to accept homemade tamales from her every Friday. It was
this personal approach to law and justice that made Joe such
a remarkable friend and law partner. He made us realize the
human element of the practice of law and the importance
of both honesty and integrity.
We will miss his calm nature, his warm friendship, his
humor and his compassion for those he represented. We
thank him for teaching us the value of tamales.
Abbe A. Kingston
Bruce W. Hogan
7
In Memoriam
Paul D. Fritz
July 20, 1941 - July 10, 2011
P
aul D. Fritz, a prominent attorney in the tri-counties and
Los Angeles areas for thirty-eight years, past USCGR
Lt., avid shotgun shooter, world traveler, and a fabulous
father, died peacefully on Sunday, July 10, 2011 surrounded
by his family.
Paul was born in Los Angeles on July 20, 1941 to Paul
John Fritz and Rosemary Weaver Fritz, and graduated from
University High School in 1959. That same year, he took
his first trip to Hawaii, traveling on a tramp steamer. This
adventure ignited his love of Hawaii, where he would take
his wife on their honeymoon and his whole family many
times in later years. He went on to receive his BA in History
from UCLA in 1964.
From September 1965 to 1969, Paul was on active duty
in the US Coast Guard. During his active duty, he served as
Captain of the Port in Honolulu. He completed his USCGR
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duty in June 1976 when he was honorably discharged.
He married his wife of 40 years, Carol Rossi, in 1970 in
San Diego, having met her at a bachelor officers dance at the
Marine Corps Recruit Depot in 1969. The couple lived in
West Los Angeles while Paul attended and graduated from
Loyola Law School in 1972. During these years, Carol and
Paul took two adventurous summer camping trips in their
1968 VW bus, which Paul made into a camper, to British
Columbia and the to the East Coast.
He and Carol decided to gallivant through Europe before
having their first child in January, 1974. They had a fun sixweek camping trip throughout the Netherlands, Germany,
Austria, Italy, and France. Upon returning stateside, they
settled in Santa Barbara where Paul joined the law firm of
Archbald, Zelezny, and Spray, and later became a partner.
His daughter, Kate, was born in 1974 and his son, Steven,
was born in 1980. Paul was a playful, fun, and imaginative
dad and was well loved by his kids! He always considered
himself “just a big kid.” When Steven was young, Paul was
the first dad to participate in teaching Post Partum Education for Parents (PEP) “Baby Basics” classes. His role was
to bathe the babies and give fatherly advice to expectant
parents, encouraging dads to feel comfortable in caring
for their new babies. After twelve years of teaching these
classes, he wrote a paper called, “One Dad’s Thoughts,”
which shared his reflections on raising children.
In 1981, he took his family for a three-month trip to the
South Pacific while taking a sabbatical from his law firm.
Their itinerary included stays in Hawaii, Rarotonga, New
Zealand, Australia, Fiji, and Tahiti. Paul always loved traveling, and in future years he would visit the Republic of Belau
Island, Kwajalein, Yap, and Truk, getting to fulfill his desire
to visit friends on Kwajalein and go SCUBA diving in Truk
Lagoon. He also had the opportunity to visit Japan when
his daughter was there, in her twenties, teaching English
at a private school.
In 1986, Paul left the law firm of Archbald and Spray and
started his own business, Creative Dispute Resolution. This
was the first time an attorney had started a business offering mediations, settlement conferences, and arbitrations;a
service that had previously been offered only by retired
judges. He continued in this practice for many years.
He was a member of many professional organizations,
including: American Board of Trial Advocates (ABOTA),and
Master, Inns of Court Chapters in Santa Barbara and Ventura. He was also a member and past Commander of the
George C. Woolsey Chapter of the Military Order of the
World Wars (MOWW), a patriotic, non-partisan organization founded in 1919.
In Memoriam
William Carl Gans, Jr.
July 7, 1949 - August 2, 2011
W.
Carl Gans, a prominent Santa Barbara attorney and mediator, died unexpectedly on
Tuesday, August 2nd, 2011, at his home in
Rancho Embarcadero, north of Goleta.
Carl was born in Wenatchee, Washington, the eldest child
of Bill and Bucky Gans—he, an engineer and former naval
officer from Pennsylvania, and she, the youngest child of
the Buckner homesteading family of Stehekin, Washington.
When Carl was six, Bill took a job with a mining company
that saw the family move first to Mexico, and later Brazil,
where Carl and his two siblings (Judy and Phil) spent many
of their formative years. After attending the Principia Upper
School in St. Louis, Missouri, Carl earned a track scholarship
to the University of Missouri. At a church youth conference in 1969, twenty-year-old Carl met a pretty young coed
from southern California, Deborah “Debi” Wells, and the
two wrote to each other during her extended trip through
Europe. On her way home, Debi visited Carl, and on their
seventh day of dating, after careful consideration, Carl
proposed marriage and Debi accepted.
After transferring to UC Santa Barbara in 1970, Carl and
Debi made their home in the Santa Barbara area and never
left. Over the next forty-one years, the couple raised four
children, saw the births of two grandchildren, and ran a
large and joyous household together.
Carl earned his BS and MS degrees in Mechanical Engineering and began his career at Delco Electronics in Goleta,
where he worked for twenty years. As he reached his mid30s, however, he discovered he had a gift for helping people
resolve their differences. True to form, despite the demands
of working full-time and raising four rambunctious children
with Debi, Carl decided to earn his law degree. He attended
night classes at the Santa Barbara College of Law, earned
his JD, was admiteed to the Bar in 1989, and has never
looked back.
For the next twenty-two years of his life, Carl developed
a family law and mediation-focused practice in Santa Barbara in close quarters with his great friends “Chip” Oxton
and Georgia Staab, and their loving and loyal staff. For the
September 2011
remainder of his life, his professional relationships with
his partners, staff, colleagues, and clients would inspire
profound happiness in Carl, and a wonderful sense of accomplishment, prompting frequent declarations that he
would never completely retire.
An intensely religious man, Carl was an elder at El Montecito Presbyterian Church, where he taught classes in
biblically-based conflict resolution. He was also an active
member of Peacemaker Ministries and developed a portion
of his legal practice around Christian Conciliation.
With close friends and family always near, Carl spent the
last years of his life in a glow of personal and professional
contentment: working, traveling the world, playing golf,
gardening, tending to his chickens, and attending church.
On Tuesday, Carl spent his final moments holding the
hand of the woman he loved—his adoring wife Debi. A
loving husband, father, grandfather, son, and brother, Carl
is survived by Debi and their four children (and spouses),
Lisl (Rhodri), Heidi (fiancé John), Will (Rebecca) and Eric
(Kristin); two grandchildren (Rhiannon and Tryfan); his
mother Bucky; his sister Judy and brother Phil; and an
enormous community of extended family, dear friends, and
respected colleagues and clients. He will be sorely missed.
Donations would be appreciated to Peacemaker Ministries (www.peacemaker.net), the Buckner Homestead
Heritage Foundation (www.bucknerhomestead.org), and
Girls, Inc. of Greater Santa Barbara (www.girlsincsb.org),
where Carl was a board member for twenty years.
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New Law Update
A Horseback View
of the New Criminal
Justice Realignment
Law (AB 109) Effective
October 1, 20111
By Robert Sanger
T
he Criminal Justice Realignment Law, known as
AB 1092 is the most comprehensive revision of our
sentencing system in California since the Determinate Sentencing Law went into effect in 1977.3 It will take
effect on October 1, 2011. People in the criminal justice
system and the public will feel the impact.
I will try to give a horseback view of the primary effects
of the Realignment Law on criminal practice in California.
This is not a comprehensive sentencing reform law of the
sort that many scholars have been urging;4 our criminal
sentencing system still needs to be fixed. The Realignment
Law affects a relatively small percentage of people who
are sentenced to prison on felonies, although it will have a
significant impact in the courtroom as well.
AB 109 Overview
AB 109 and several other associated bills take effect on
October 1, 2011 with a portion on parole revocations taking effect July 1, 2013. It is a long and complicated act with
several amendments to the substance, implementation and
funding.5
The biggest change is that people convicted of non-violent, non-serious and non-sex offense registerable felonies,
punishable by three years or less, who also do not have
priors for “non-non-non’s” will serve their sentences in
the county jail instead of prison. A finding of a Penal Code
Section 186.11 enhancement can also disqualify them from
county jail. And, some non non non felonies that exceed
three years may also qualify as “county jail felonies.”
The key to knowing which crimes are punishable as
“county jail felonies” and which are not is looking at the
amended code sections for the substantive offense and
looking at the new Penal Code Section 1170(h). Basically,
the amended code sections will read “imprisonment in the
county not exceeding one year or pursuant to subdivision
(h) of Section 1170.” There are also some four year felonies
and even a few with greater than four years. There are
even a large number that are three years that are arguably
10
excluded.
The first subsection of Penal Code Section 1170(h) sets
forth the standard language, similar to Penal Code Section
18(a), that an unspecified prison term is sixteen months,
two or three years. The second subsection provides that
such a sentence can be served in the county jail (although
counties can contract with the state prison). The third
subsection provides for the exceptions — serious, violent
(prior or current), 290 registered sex offender or subject to
a 186.11 enhancement — which must be served in state
prison. The fourth subsection allows diversion, deferred
entry or probation, if authorized by law. And the fifth
subsection allows the court to choose the term and then
follow it with a term of probation.
In addition, some of these felonies may be followed by
county Post Release Community Supervision (PRCS) as
opposed to parole. There are and will be plans for implementation of this local supervision. There will be rules as
to who qualifies and who does not for this type of release. There will also be a flash incarceration provision allowing
officials to roll a person up for ten days without a hearing.
There will be special rules governing release violation hearings which will be conducted by a court officer.
The new Revocation Court Officer, a position to be created by the Superior Court, will hear alleged violations
both as to Post Release Community Supervision and after
July 1, 2013, alleged violations of parole. Each county will
be required to notify the California Department of Corrections and Rehabilitation (CDCR) as to what agency or
agencies will be responsible for the PRCS responsibilities.6
Post Release revocations will be punished by no more than
180 days.
State Parole will still be available for all people admitted
to parole prior to July 1, 2013. In addition, it will continue
for people whose new offense is a serious or violent felony,
who have been convicted of a third strike, who are classified as a high risk sex offender, or who are classified as a
Mentally Disordered Offender (MDO).
A person on parole will be subject to the revocation
process in place before the Board of Parole Hearings
(BPH) until the Post Conviction Community Supervision program takes over on July, 1 2013. However, parole
violators will face a maximum of 180 days for a violation and that will be served in the county jail unless the
person was paroled after originally being sentenced to
life, in which case, s/he will be sent back to prison. The
BPH can discharge anyone on parole with a county jail
qualifying conviction if they have not had any violations
after six months. The BPH will continue to conduct parole
hearings for lifers, medical parole hearings, Mentally DisSanta Barbara Lawyer
New Law Update
ordered Offender and Sexually Violent Predator hearings.
County jail credits will be one for one (technically, four for
two) on just about all cases except for murder and violent
offenses. Counties can use home detention with electronic
monitoring (EM) to count as jail time and can also use EM
for release on own recognizance or bail. Counties can also
use other custody tools, such as Day Commitment Centers
or creative alternative treatment programs.
People will still be committed to the CDCR if their
present or prior offenses were serious or violent offenses
under Penal Code Sections 1192.7(c) or 667.5(c) or if they
are required to register as a sex offender under Penal Code
Section 290. In addition, there is a laundry list of approximately sixty offenses which will not be eligible for county
commitments.
The original Bill (AB 109) limited future juvenile court
commitments that could have been made to the Division
of Juvenile Justice (DJJ). However, AB 117 removed that
portion. As it stands, the Realignment Law does not appear
to make any changes to the juvenile system.
Date of Application and Retroactivity
Right now, it appears from the text that the bulk of the
legislation applies to people sentenced on or after October 1,
2011. The jail “4 for 2” credits provision, by its terms, only
applies to crimes committed after October 1, 2011. People
released from prison after October 1, 2011 who were non
non non’s and also not third strikers, high risk offenders or
mentally disordered offenders will get Post Release Community Supervision instead of parole.
Funding
$500,000,000 has been budgeted to fund the measure,
including funds to assist the counties in implementing programs that will allow them to accommodate all these new
prisoners.7 District Attorney offices and Public Defender
offices are also getting a cumulative allocation of funds to
accommodate changes in their offices of $12,700,000 statewide.8 There will be cumulative allocations of $354,300,000
for AB 109 programs.9 There is also a one-time allocation
for training and retention purposes of $25,000,00010 and for
the CCP planning of $7,850,000.11
Administration
The Realignment Law will be implemented by a Community Corrections Partnership (CCP)12. The CCP is required
to develop and recommend an implementation plan to the
county Board of Supervisors. The plan will be deemed accepted unless the Board rejects the plan by a four-fifths vote.
There will be an Executive Committee formed from the
September 2011
Robert Sanger on his horse, Polly. Mr. Sanger is a criminal
defense lawyer and is a partner in Sanger & Swysen.
CCP members comprised of the Chief Probation Officer,
who will be the Chair, a Chief of Police, the Sheriff, the District Attorney, the Public Defender, Presiding Judge of the
Superior Court and a representative of a designated Social
Services agency. This Executive Committee will be subject
to the Brown Act.13 Even though there are many interested
groups excluded from the Executive Committee, such as
private defense lawyers and community and re-entry activists, open meetings should give some opportunity for input.
Conclusion
Like all new laws, this has some uncertainties. Implementation on the county level could be an opportunity to
implement constructive penological techniques. On the
other hand, all the funds could be co-opted and diverted to
administration or other less directly effective uses. We also
have a chance to do some creative sentencing. There are certainly some statutory ambiguities that need interpretation.
Continued on page 24
11
Legal News
California Women Lawyers
Select Hannah-Beth Jackson
as 2011 Recipient of the Fay
Stender Award
By Laura Dewey
O
n September 15, 2011, the opening night of the
State Bar’s Annual Meeting, California Women
Lawyers (CWL) will honor former Assemblywoman and local attorney, Hannah-Beth Jackson, with its
prestigious Fay Stender Award.
Fay Stender was born in 1932, graduated from UC Berkeley, and received her law degree from the University of
Chicago in 1956. After clerking at the California Supreme
Court, she worked in a criminal defense practice, where
she partnered with an attorney in founding the Prison
Law Project, which involved representing many prisoners
and defending their rights. She was also a founding Board
member of CWL, chaired its Joint Custody Project, and
served on the advisory Committee of the Women’s Litigation Unit. Additionally, Fay chaired the San Francisco Bar
Association’s Employment of Women Committee, and
served on the charter board of Equal Rights Advocates’
Lesbian Rights Project.
In the early morning hours of Memorial Day, 1979, Fay
was shot five times by an intruder. Gravely injured and seriously disabled, she committed suicide one year later. She
was survived by her mother, sister, husband, two children,
and by numerous friends and colleagues.
Throughout her life, Fay Stender undertook unpopular
causes, and worked with under-represented groups and
individuals. Her tenacity, creativity, and compelling sense
of justice were legendary; her commitment, energy and
integrity enriched all who were privileged to work with her.
The annual award is given 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 make her a role model
for women attorneys. That description certainly applies to
Ms. Jackson, who has literally been fighting for women’s
rights since she was a young athlete, unable to play Little
League baseball because she wasn’t a boy. She turned to
tennis instead and became a junior champion in New England. Later, she helped found the women’s varsity tennis
12
team at Scripps.
After obtaining her law
degree at Boston University,
Ms. Jackson began her career
with the Santa Barbara District Attorney’s office in 1976.
While there, she helped found
Shelter Services for Women,
the predecessor to Domestic
Violence Solutions, which
Hannah-Beth Jackson
has helped many victims of
violence in the home. She
was a co-founder of the Santa
Barbara Women’s Political Committee, as well as Santa
Barbara Women Lawyers. Later, while in private practice, she represented the Tri-Counties chapter of Planned
Parenthood in defending the “Bubble Ordinance,” which
provided a safe zone for patients to enter and exit Planned
Parenthood clinics.
Ms. Jackson continued her commitment to women’s
reproductive health in the Assembly. She authored AB
2194, requiring all medical residency programs in obstetrics and gynecology to include training in the performance
of abortions. She was also the principal co-author of the
Reproductive Privacy Act (SB 1301), ensuring protection of
Roe v. Wade principles in California and increasing access to
early, non-surgical abortion procedures.
In all, Ms. Jackson authored sixty-four bills enacted into
California law. Her legislation continues to aid women with
issues from child rearing to spousal support to economic
and wage equality. While in the Assembly, she was a leader
who co-chaired the Assembly Select Committee on Title
IX and chaired the Legislative Women’s Caucus.
Planned Parenthood recognized Ms. Jackson’s efforts by
awarding her the “Giraffe Award,” for sticking her neck
out for reproductive choice. Ms. Jackson continues to
stick her neck out as Executive Director of the Institute of
the Renewal of the California Dream and as President of
Speak Out California!, a web blog helping to define a new
progressive agenda for our State (http://www.speakoutca.
org/weblog/). She also hosts a Saturday morning radio
program, “Speak Out with Hannah-Beth.”
Tickets to the CWL Annual Dinner can be obtained at
their website, www.cwl.org. You may also contact the
author of this article at 966-7949 to inquire about availability of tickets at the SBWL table.
Laura Dewey is a certified family law specialist (California State
Bar Board of Legal Specialization) and Santa Barbara Women
Lawyers’ Affiliate Governor for California Women Lawyers.
THE SANTA BARBARA COUNTY BAR ASSOCIATION
Cordially Invites
Members of the Bench and Bar, Spouses and Guests to join us for the
2011 ANNUAL DINNER
November 28, 2011
Featuring Guest-of-Honor, newly appointed California
Supreme Court Chief Justice Tani Cantil-Sakauye.
This event will provide an ideal opportunity for the
tri-county legal community to meet the
the State’s Chief Justice.
Fess Parker’s Doubletree Resort
633 East Cabrillo Boulevard
Santa Barbara Ballroom
Reception at 6 P.M.
Dinner and Program at 7 P.M.
Payments Received Before October 31, 2011 - $115 per person
Payments Received After October 31, 2011 - $125 per person
**All fees are non-refundable**
Name
Vegetarian? Applicable price from
above
$
.00
$
.00
$
.00
To reserve and pay by credit card, or if you
have questions, call SBCBA at
(805) 569-5511.
September 2011
Total:
13
To reserve & pay via
USPS, please
complete form and
send with your check
payable to: Santa
Barbara County Bar
Association at 15
West Carrillo St.,
Suite 106, Santa
Barbara, CA 93101
Labor Law Update
“Way Cool” Twitter
Does Not Protect
the Inappropriate
By L. Michael Zinser
A
reporter at the Arizona Daily Star in Tucson, Arizona, had two Twitter accounts; one which was
to be used for Company business to develop a
following and drive readers to the newspaper. On his
Company-related, Company-affiliated Twitter account,
the reporter “tweeted” the following:
August 27, 2010—“You stay homicidal, Tucson. See
Star Net for the bloody deets.”
August 30, 2010—“What?!?!? No overnight homicide?
WTF? You’re slacking Tucson.”
September 10, 2010—“Suggestion for new Tucsonarea theme song: Droening [sic] pool’s ‘let the bodies hit
the floor.’”
September 10, 2010—“I’d root for daily death if it
always happened in close proximity to Gus Balon’s.”
September 10, 2010—“Hope everyone’s having a good
Homicide Friday, as one Tucson police officer called it.”
In addition to the homicide tweets, the reporter posted
several tweets of a sexual, double entendre nature:
September 14, 2010—“Surrounded by MILFs and
tweens.”
September 15, 2011—“Go (NAKED) Cats!! RT@STarNET: UA student featured in Playboy’s PAC-10 issue.”
September 19, 2010—“My discovery of the Red Zone
channel is like an adolescent boy’s discovery of his…let’s
just hope I don’t end up going blind.”
The reporter was counseled about the inappropriate
nature of these tweets. After being counseled for these
inappropriate tweets, on September 24, 2010, using the
Company-affiliated Twitter account, the reporter criticized
a local TV station, referring to their on-air people as “stupid
TV people.” This generated a complaint from the station
manager. In his complaint, he said, “I feel since this particular Twitter account is affiliated with the Star, a tweet
like that becomes unprofessional.” Management agreed
and fired the reporter.
The Arizona Daily Star newsroom is non-union. However,
14
the fired reporter filed
an unfair labor practice
charge at the National
Labor Relations Board
(NLRB), claiming he had
engaged in protected activity. Obviously, the reporter was aware that
social media cases are a
current, hot issue for the
NLRB. The local office of
the NLRB sent the case
to the NLRB’s Division
of Advice in Washington
L. Michael Zinser
D.C. Unbelievably, the
agency pondered the case
for months.
Arizona Daily Star reminded the NLRB that less than three
months after the reporter’s inappropriate homicide tweets,
Congressman Giffords was shot in the head in Tucson and
others were killed in a senseless massacre. Arizona Daily Star
argued that any attempt by the NLRB to seek reinstatement
of this employee in Tucson would be publicly unseemly
under the circumstances. Whether posted on Twitter,
written in the newspaper, stated in a broadcast, or posted
on Facebook, such commentary by the reporter would be
considered inappropriate and unprofessional.
Additionally, Arizona Daily Star argued that reinstatement
of this employee would violate the First Amendment rights
of the newspaper. Whatever the reporter tweeted on his
Company-related Twitter account was content. Arizona
Daily Star has a First Amendment right to control the content of all of its media platforms. The NLRB does not have
the authority to dictate what content Arizona Daily Star
can choose to distribute on Twitter. That goes to the core
of entrepreneurial control and the First Amendment rights
of the newspaper.
On April 28, 2011, the NLRB dismissed the charge. The
terminated reporter appealed. On June 6, 2011, the NLRB’s
Office of Appeals denied the reporter’s appeal, upholding
the discharge.
Editor’s Note: Arizona Daily Star was represented by The
Zinser Law Firm.
L. Michael Zinser is the President of The Zinser Law Firm, P.C.
The Zinser Law Firm is a boutique law firm representing employers in the areas of labor and employment law. Their practice is
nation-wide. In Santa Barbara, the Zinser Law Firm represents
the Santa Barbara News-Press in its ongoing negotiations with
the Teamsters Union.
September 2011
15
Criminal Justice
Testing and
Intellectual
Functioning
Mental Retardation
and Being Put to
Death by the State
Part Two
By Robert Sanger
I
n last month’s Criminal Justice column, we discussed
the idea that whether or not a person can be killed
by the state depends on whether or not the person’s
lawyer can establish, by a preponderance of evidence, that
the person is mentally retarded as a matter of law. We discussed the fact that the language of science and medicine
has moved on and now speaks of intellectual disability,
but that we, in the legal profession, still address the issue
in terms of mental retardation. The Atkins1 case from the
United States Supreme Court and cases from the California
Supreme Court basically say that the death penalty cannot
be given to a mentally retarded person and, instead, for a
capital case, that person will be permanently imprisoned.
We also discussed the three major criteria for determining mental retardation based on the case law, California
Penal Code Section 1376 and the consensus of the scientific
community as reflected in the Manuals of the American
Association for Mental Retardation (AAMR) now known
as the American Association for Intellectual and Developmental Disabilities (AAIDD).2 These three criteria are: 1)
limitations in intellectual functioning; 2) deficits in adaptive functioning; and 3) onset before age 18. We touched
on them briefly last month in the context of the arbitrary
determination that will ultimately be made, allowing one
person to live and the other to be killed by the state.
This time we will look at the developments in the state
of the science regarding mental retardation and its implications for legal determinations. Legal responsibility is
based on the concept of choice. It turns out that there are
problems with testing and with evaluation of adaptive
behavior that make it difficult to come up with a scientific
conclusion as to who among the population near the range
of mental retardation is impaired in their abilities to make
these choices and to be held liable to the state’s ultimate
punishment. In this month’s Criminal Justice column, we
will look at those issues and, next month in Part 3 of this
series, we will look at some of the latest developments in
science, including genetics and epigenetics, relating to the
etiology of mental retardation.
16
The first criteria in the
definition of mental retardation is a significant
limitation in intellectual
functioning. At one time, it
was thought that a full IQ
score of seventy was the
cut off for mental retardation. Where the determination was going to be used
for critical purposes, such
Robert Sanger
as whether or not a child
would be placed in special
education classes, people began to worry about how accurate it was. The consequences might mean that a child
who was not retarded, but who scored low for some other
reason, would be tracked in special education and labeled
for life. To the contrary, a child who scored too high on a
test might be deprived of benefits and necessary assistance.
At one point, there was believed to be a racial effect in test
scores, and then it was shown that there was not. However,
socio-economic factors were found to have a correlation
with a deviance in scores. All this was of great concern before the Atkins case. It has taken on additional significance
now that a determination of mental retardation or not is
the difference between life and death.
Therefore, the nature of IQ testing has been greatly refined. The current verson of the Wechsler tests is the gold
standard today. Historical tests using the WAIS3 or the
WISC4 have also been regarded as the tests which have been
most able to withstand the test of time. So when looking
through school or institutional records to find tests given a
subject decades ago, a WAIS or a WISC test, of whatever
version, will have considerable weight. The Stanford-Binet
tests5 are also accorded weight, but the manner in which
they were given is critical. It is generally regarded now that
tests created for group administration are not reliable even
if they are administered individually but, especially if they
are administered in a group.
There are other influences on the validity of a test. One
of the primary concerns is proper norming of the test.
Norming means that the results of the test are evaluated in
reference to a large sample of test takers. Ideally, the sample
should contain a proper cross-section of the community.
Furthermore, the norming has to be current.
There is a phenomenon known as the “Flynn Effect,”
after the researcher who discovered it. Essentially, scientific
Criminal Justice
research has established that the population does better on
FSIQ tests by about .03% per year or by about three full
points every ten years.6 There is much speculation about the
cause of the Flynn effect: better diet, increased stimulation
from the environment, susceptibility to illness, and other
environmental factors. However, the effect is accepted and
has been constant. This means that, if time has passed since
the norming of the test, the norm at the time of the test will
be that much higher based on the amount of time that has
passed. So, if you took a test today that was normed ten
years ago, you would actually stand in a different position
to that of the current norm. Put another way, if you took a
test today and so did a large cross-section of the community,
everyone would be expected to test higher and, therefore,
the norm (IQ 100) would be higher.
So, someone who tests at a FSIQ of 72 based on a test
normed ten years ago would actually be a 69 compared to
the actual population today. If a person is close to a relevant
legal determination, like whether they should live or die, it
is critical to adjust the test for that factor.
In addition, it has been determined that the best tests,
even if properly administered and normed, are accurate to
a plus or minus five points. Therefore, the proper range for
mental retardation is a FSIQ of between 70 and 75. This
range has been incorporated into the diagnostic criteria for
determining whether there is a significant limitation in intellectual functioning. The current AAIDD manual describes
the deficit as two standard deviations from the norm which
is a seventy plus or minus five points.
Adaptive Behavior
The second criteria in the definition of mental retardation
is adaptive functioning. The basis for making this determination is not addressed in the California Penal Code and is
called out in more or less detail in the DSM IV-TR and the
1992 version of the AAMR Manual. The 2002 and 2010
AAMR/AAIDD versions of the Manual refer to three domains of behavior: 1) conceptual, 2) social and 3) practical.
The question is whether there are significant deficits within
theses three domains of adaptive behavior. The deficits in
functioning are not offset by strengths in others. It is said
that a mentally retarded adult will have the functional skills
of a ten to twelve-year-old. So being able to do things a
child of that age can do does not disqualify the diagnosis.
It is also important to note that the type of mental retardation we are concerned with here does not necessarily
manifest itself in physical symptoms, such as Downs Syndrome. Typically, we are dealing with people who are able
to function in society to one extent or another. They are the
“invisible” retarded. Prior to our current need to determine
September 2011
retardation for the purpose of the death penalty, the clinical
focus was solely on how to identify people who met this
criteria so that they could be provided with assistance as
needed. Longitudinal studies of people with mental retardation have shown a great deal of assimilation into the community, often undetected. In this category, people are able
to take public transportation, hold jobs, prepare their own
meals, sometimes marry, make appointments and so on.
So, the adaptive functioning skills that we are looking
at are rather subtle. The third category, “practical skills,”
covers some of the more profoundly retarded who cannot care for themselves or live independently and they
are still, of course, retarded. But most of the people who
are closer to the upper reaches of mental retardation will
have problems in the first, “conceptual,” and the second,
“social,” skills areas. Conceptual skills include the ability
to think conceptually, not just concretely, to communicate,
to read and write, to use money and to deal with abstract
ideas. Under social skills are various forms of interpersonal
relationships, including whether a person is gullible, likely
to be victimized or is able to form friendships and do well
in groups.
There are testing instruments for clinicians to make determinations of the deficits in these areas. Some tests are
administered to the subject directly. These pertain primarily
to the conceptual skills. Can the subject read and write, can
she or he make associations of words and pictures, can she
or he perform increasingly complex tasks? Other tests are
administered to people who knew the subject well growing
up. They seek information about social skills although, of
course, if deficits in practical skills are detected, that will
be of interest to the clinician as well.
In the end, there is a good deal of objective testing and
information gathering that can provide remarkably solid
results. However, there is also an element of subjective
analysis, and the fact is that experts can form different
opinions as to whether or not there are deficits in some
of the skills. The bottom line is that, in close cases, the
presence or absence of significant adaptive deficits will be
subject to question in the same way that we cannot reach
a precise IQ number.
Onset Before the Age of 18 and Retrospective
Evaluations
We will examine the third criteria, onset before the age
of eighteen, along with the concept of retrospective evaluation since there are issues that are intertwined. Basically,
for a person to have mental retardation, she or he must have
17
SANTA BARBARA PARALEGAL ASSOCIATION & CALIFORNIA ALLIANCE OF PARALEGAL ASSOCIATIONS
with the gracious support of the Santa Barbara District Attorney’s Office, present our second annual
Full Day Fall MCLE Conference
AT THE HISTORIC
SANTA BARBARA COUNTY COURTHOUSE
( a portion of your registration proceeds will be donated to the Courthouse Legacy Foundation )
S ATURDAY , S EPTEMBER 24, 2011
Registration includes continental breakfast, a picnic lunch, a wine and cheese reception, a docent led tour of the courthouse
and our conference features:
Keynote opening presentation by Ronald J. Zonen, Senior Deputy District Attorney (Pro Tem)
Breakout talks presented by:
The Honorable Robin L. Riblet, U. S. Bankruptcy Court Judge
Michael E. Pfau, Partner at Reicker, Pfau, Pyle & McRoy, LLP
Paul A. Graziano, Managing Partner at Allen & Kimbell, LLP
Lori A. Lewis, Partner at Mullen & Henzell, LLP
Scott B. Campbell, Partner at Rogers, Sheffield & Campbell, LLP
Jeralyn C. Ehlers and Renee Fairbanks, Ehlers & Fairbanks, LLP
Lol Sorensen and Judith Rubenstein, Rubenstein & Sorensen Mediation
Linda G. Sharp, Xerox Litigation Services
Moriah A. Kairouz, Batza & Associates, Private Investigators
Special closing presentation by The Honorable Brian E. Hill
Santa Barbara County Superior Court Presiding Judge
Registration Information and Forms Available At:
www.sbparalegals.org
or contact: Barbara Liss at (805) 963-2014/[email protected]
18
Legal News
Show Me the Money:
A Harrowing Fiscal Tour with
State Controller John Chiang
By Donna Lewis
T
he man with the purse strings of the State of
California, Controller John Chiang, addressed
members of the SBCBA on July 21 2011. SBCBA
extends its thanks to Santa Barbara Superior Court Executive Officer Gary Blair, who made the Jury Assembly Room
on Santa Barbara Street available for the meeting. With this
location provided, SBCBA was able to make this event free.
John Chiang was first elected as Controller of the State
of California in 2006. He explained that his priorities have
been to make the State’s finances more transparent to the
public and to ferret out abuse of public funds. Based on
results, he has had some success with that. His administration’s audits identified more than $2.5 billion in taxpayer
dollars that were denied, overpaid, subject to collection, or
resulted in revenues, savings and cost avoidance.
As California’s Controller during the worst economic
downturn since the Great Depression, Chiang needed to
delay payments and issue IOUs to preserve cash to meet
obligations to education and bond holders. Unlike cities
and counties, states cannot file for bankruptcy, although
they can go insolvent. In determining who gets paid in
what order, the priorities are set by law. Education and
debt service are paid first. Near the bottom of the list are
tax refunds, student scholarships and SSI. His office has
asked schools not to drop students who were expecting
Cal Grants, student scholarships now in jeopardy.
California owes the federal government $10 billion for
unemployment benefits. It owes education $20 million and
some consequences were not anticipated. For example,
China backed out of a plan to cooperate with UCSB in a
large biological research project because of the shakiness
of funding. Lost opportunities are harder to quantify, but
no less real.
Ominously, he stated that the court system is not immune
and will face severe challenges in the next two years.
He explained that the three largest state expenses are
education, health care and corrections. California’s “Three
Strikes” law, he noted, filled state prisons beyond capacity
and created a burgeoning expense. He also reminded us that
September 2011
capital punishment is
more expensive than
life imprisonment
without parole.
California’s top
three revenue sources, he revealed, are
1) income tax, by a
large margin, 2) corporate taxes, and 3)
property taxes. Individuals, corporations
and government, he
maintained, have too
much debt on average, and he expects
John Chiang
government and real
estate to continue to
struggle as a result.
Workers previously employed in manufacturing have
dwindling options. Offloaded by California manufacturers
in the past fifteen years, some moved into the construction
industry. Then building slowed to a trickle, and construction
is now experiencing 40-50% unemployment in some areas.
Those who were in manufacturing, then, have been so hard
hit that bouncing back to their former relative wealth with
the next economic cycle is unlikely.
When the lower cost of government in Texas was cited
by an alert audience member, Controller Chiang explained
that a large fraction of government operational cost is salaries, and that California state government needs to pay its
employees more than Texas does because real estate, and
therefore housing, is still more expensive in most areas of
California than it is in Texas. Even with this dynamic driving
salaries, he added, salaries at the University of California
and other state schools are not enough to keep many of the
best professors. Many can make 40% more at top private
schools like Stanford and Harvard.
On a brighter note, he mentioned that the state holds
funds on behalf of individuals seemingly gone missing. It
is there for the claiming. Controller Chiang revealed that
one of the event attendees, and a past president of SBCBA,
had $31 whole dollars with her name on it being held by
the state. For more info on Controller Chiang or to check
for money held in your name by his office, go to http://
www.sco.ca.gov/
Donna Lewis’ practice emphasizes business and employment law.
She has been a member of the SBCBA Board since 2005 and an
officer for 2 years.
19
Latina/o Lawyers Association of Santa Barbara
Celebrating Latino Achievement in Law
Honoring Public Defender Raimundo Montes de Oca
Saturday, September 17, 2011
Fess Parker’s Doubletree Resort
5:00-6:00 PM Sponsors Reception with Justice Carlos Moreno (Ret.)
Anacapa Patio
6:00 PM Dinner Reception
Sierra Madre Room
7:00 Dinner
Sierra Madre Room
$100 per person
In February 2011, the Santa Barbara County Board of Supervisors appointed Raimundo
Montes de Oca as the Public Defender for Santa Barbara County. Montes de Oca is among a few
Latinos to head a Public Defender’s office in California history. He is the son of Mexican immigrants
and a Carpinteria native who has dedicated his career to public service.
California Supreme Court Justice Carlos Moreno (Ret.) is honoring us as keynote speaker to
commemorate this momentous occasion for our community. Justice Moreno was only the third judge
of Hispanic heritage to serve in the court’s nearly 150 year history, and the first in more than a decade.
He authored 144 majority opinions for the court and made significant contributions to many areas of
law. Justice Moreno also authored the sole dissenting opinion against the constitutionality of Prop 8,
until which time he was short listed for a position on the U.S. Supreme Court.
For information about sponsorship opportunities, please contact Juan Huerta, Esq. at 8822402, Monica Robles, Esq. at 966-9696, or Tracey Rangel Cruz, Esq. at 965-0752. For tickets, send $100
per person to Latina/o Lawyers Association of Santa Barbara (LLASB), 104 W. Anapamu St., Suite D,
Santa Barbara, CA 93101.
----------------------- ------------------------------------------------------
Reservation Information:
Number of Reservations________x $100=_________
Name(s):____________________________________________________________________________
Firm Name:_________________________________________________________________________
Address/Phone or email:_________________________________________
_____Chicken
_____Vegetarian
20
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22
Legal Community
Report of SBCBA
Liaison to Affiliate
and Legal Community
Organizations
By Angela D. Roach
C
ourthouse Legacy Foundation: On Saturday, July
30, 2011, CLF held its “Puttin’ on the Glitz” event
in the Santa Barbara Courthouse Sunken Garden.
Guests arrived to the tunes of the 1920s played by Brian
Tari. Guests also enjoyed jazz vocalist Barbara Morrison
and toasted the installation of the newly renovated Spirit
of the Ocean Fountain!
SBCBA Lawyer Referral Service: The Lawyer Referral
Service has been distributing its business cards throughout
Santa Barbara to law firms and other professionals as well
as to area businesses, community centers and non-profits.
The program contact number is (805) 569-9400.
SBCB Foundation: SBCB Foundation is excited to announce the return of its Courthouse Personnel Appreciation
Party fundraiser for the Santa Barbara County Bar Foundation on Friday, October 14, 2011, at 5:00pm – 8:00pm
at the Santa Barbara Superior Courthouse. Sponsorship
opportunities are available and those wishing to donate to
the Foundation for this event may contact John Thyne at
(805) 963-9958.
Santa Barbara Women Lawyers: SBWL is pleased to
announce the First Annual ‘Food from the Bar’ drive to
raise food and funds for the Foodbank of Santa Barbara
County was a success! SBWL thanks all the sponsoring
law firms and organizations for making the drive a success.
Also, SBWL wants to especially recognize all the donors
who donated funds to the Foodbank. The drive exceeded
the monetary goal of $5,000. SBWL had a Wrap-Up Party
with the Foodbank on August 25th to recognize and thank
participants and donors.
SBWL will hold a MCLE event on September 20, 2011,
from noon to 1:15pm on the topic of women’s health issues
and the law. A representative from Planned Parenthood
will speak. The event will be held at the University Club
and will include lunch. For more information about these
September 2011
MCLE events or to RSVP, please contact Pauline Ung at
[email protected].
Please join the Santa Barbara Women Lawyers Foundation for its Annual Donor Appreciation & Awards Dinner
on Wednesday, September 28th, 2011, beginning at
5:30pm. The event will be held at Zaytoon Restaurant (209
E. Canon Perdido) and include three courses and beverages.
Cost to attend is $60/$65 for SBWL members/nonmembers
or sponsor a table of eight for $600. This year the Foundation will honor its Major Donors and SBWL Founding
Mothers. Major Donors include Brownstein Hyatt Farber
Schreck and Hager & Dowling. Founding Mothers will be
announced at the event. Special award will be presented
to Commissioner Deborah M. Talmage. Please RSVP to
Stephanie Ball by September 20, 2011, at [email protected]
or (805) 882-1433.
Legal Aid: Please save the date for the Second Annual
Chowder Fest set for October 23, 2011, from 1-5pm at
Montecito Country Club.
Northern Santa Barbara County Bar Association:
The NSBCBA will host a free Child Support and Custody
Community Forum on September 6, 2011, from 6-8pm at
the Santa Maria Public Library. The Forum will be presented
by Cameron Fernandez, Attorney at Law.
SB Legal Secretaries Association: SB Legal Secretaries
Association has partnered with Merrill Corp. to provide a
series of one-hour CLE credit “Learning at Lunch” Programs
at the Santa Barbara College of Law. On Thursday, October 27th at Noon - Merrill Corporation completes its third
and final E-Discovery MCLE credit program, “Navigating
Uncharted Waters – Best Practices to Find a Safe Harbor.”
This session will provide an overview of the best practices
to position a company for protection of the ‘Safe Harbor’
created by the Federal Rules of Civil Procedure. Join SBLSA
for this Learning at Lunch at the SB College of Law at Noon
- Lunch provided by Merrill. RSVP to Elizabeth Kapp at
[email protected].
Santa Barbara Paralegal Association: The 2nd Annual SBPA MCLE Conference will take place at the Santa
Barbara Courthouse on September 24, 2011. A full day
conference will be held with exciting opening and closing
sessions along with diverse breakout sessions. The Keynote
Speaker will be Deputy District Attorney Ronald J. Zonen.
23
Legal Community
New Law Update
Roach, continued from page 23
Sanger, continued from page 11
Five MCLE credits will be available to those attending the
full day conference. A wine and cheese reception will follow the conference which will include a docent-led tour
of the Courthouse. For more information contact Barbara
Liss, MCLE Chairperson, at [email protected] for
further information.
That is how it looks from the saddle right now. We will
have to see how these things play out as the Realignment
Law is put into effect.
Santa Barbara Trial Lawyers (formerly Santa Barbara Plaintiffs Personal Injury Bar): In June of this year,
SBTL hosted local attorney Seana Thomas, who spoke
about the new reporting requirements and rules affecting
Medicare patients with personal injury actions. In July, SBTL
hosted local attorney John Hager, of Hager & Dowling, who
spoke about uninsured motorist issues and bad faith actions
involving personal injury litigants. Both speakers were well
received and their presentations were very informative. In
August, SBTL hosted local attorney Lori A. Lewis of Mullen
and Henzell. She spoke about probate, conservatorship and
trust issues for personal injury attorneys.
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1 A longer version of this article is appearing concurrently in the
CACJ Forum September 2011 edition.
2 AB 109 has been amended since its enactment (primarily by AB
117) and AB 118, AB 111, AB 94, SB 89 and SB 87 provide primarily for the funding of the new law. It was most recently amended
by AB 116 which was signed by the Governor on July 27, 2011.
3 Penal Code Section 1170(a)(1) states the purpose of the new
Determinate Sentencing Law.
4 See, e.g., Joan Petersilia, Understanding California Corrections, University of California, 2006; the Little Hoover Commission Report,
Solving California’s Corrections Crisis, 2007.
5 AB 107, 117, 118, 111, 116 and 94 and SB 89 and 87.
6 Notification should have been made by August 1, 2011.
7 The statistics herein are derived for the Memo of July 8, 2011,
prepared by the California State Association of Counties, Paul
McIntosh, CSAC Executive Director.
8 For instance, the District Attorney and Public Defender in Los
Angeles will receive $2,017,344 each, in San Bernardino, $462,146
each, Santa Barbara, $69,520 each and Alpine, $2,712 each.
9 Los Angeles will receive $112,558,276, San Bernardino,
$25,785,600, Santa Barbara, $3,878,876, and Alpine $76,883.
10 Los Angeles will receive $7,942,300, San Bernardino, $1,819,475,
Santa Barbara, $273,700 and Alpine, $5,425.
11 This is distributed to each county based on population. Up to
200,000 population receives $100,000, from there to 749,999
receives $150,000 and over 750,000 receives $200,000.
12 This was previously established by Penal Code section 1230.
13 California Government Code section 54952(a), the Ralph M.
Brown Act or “Open Meeting” law.
Robert Sanger is a Certified Criminal Law Specialist and has been
a criminal defense lawyer in Santa Barbara for thirty-seven 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.
Member SIPC
.
125 E De La Guerra St Ste 101
805-564-0011
Connecting
x
Endnotes
ATTORNEYS • PARALEGALS • LEGAL STAFF
SAVE THE DATE!
conﬁdential
employment
placement
Friday, October 14, 2011
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
24
Santa Barbara County Bar Foundation
Party at which
Courthouse Personnel will be Appreciated
at the Courthouse Sunken Gardens
Contact John Thyne at [email protected]
Legal Community
First Annual ‘Food
From The Bar’ Drive
A Major Success!
By Marianne Stein and Angela Roach
D
uring the month of July, the local bar came together to raise funds and collect food for local
families in the first ‘Food from the Bar’ Drive. All
donations were made to the Foodbank of Santa Barbara
County. The Foodbank was founded in 1982 and has made
a significant impact in our local community ever since.
During 2010, the Foodbank distributed 10.5 million pounds
of food to 164,000 people in Santa Barbara County. The
Foodbank distributes food to over 200 non-profit programs,
food pantries, senior centers, after-school programs and
soup kitchens. The statistics showing who the Foodbank
of Santa Barbara County serves are startling. For example,
44% of those served by the Foodbank are children under
the age of eighteen. Santa Barbara Women Lawyers (SBWL) was inspired to
organize the ‘Food from the Bar’ Drive from other women
lawyer organizations in California who organized similar
drives in the past. SBWL began organizing the Drive in April
by contacting other local legal organizations to determine if
they wanted to participate. The response was overwhelming. Nearly every legal organization in Santa Barbara joined
to co-sponsor ‘Food from the Bar.’ This included the following legal organizations or groups: Santa Barbara County
Bar Association, Santa Barbara County Bar Foundation,
Santa Barbara Women Lawyers Foundation, Santa Barbara Paralegals Association, Santa Barbara Barristers, Santa
Barbara Legal Secretaries Association, Santa Barbara Trial
Lawyers, Legal Aid Foundation of Santa Barbara County,
Environmental Defense Center, Santa Barbara District Attorney, Santa Barbara Public Defender, and Santa Barbara
County Counsel.
Not only did our local bar overwhelmingly participate in
the Drive, it demonstrated generosity to those in need. At
the start of the drive, SBWL set a goal to raise over $5,000
for the Foodbank of Santa Barbara. Monetary donations
were encouraged. Because of Foodbank partnerships, the
Foodbank is able to obtain $7 worth of food for every $1
donated. While donations continue to come in, as of August
10, ‘Food from the Bar’ raised over $6,500, exceeding its
September 2011
goal by over $1,500! The donations came from legal organizations listed above including SBWL, SBWL Foundation,
and Barristers, generous donations by individual members
of the legal organizations listed above, individuals in our
legal community, and from some of our judicial officers. In
addition to raising over $6,500 in monetary donations, the
Drive collected over 600 pounds of food.
The ‘Food from the Bar’ Drive also inspired others in our
community to give to the Foodbank to feed those in our
local community. SBWL would like to thank Rabobank
for its generous donation to the Drive. SBWL would also
like to thank attorney William Marler from Marler Clark
LLP of Seattle, Washington. Mr. Marler made the largest
single donation to the Drive. Mr. Marler is a personal injury
and food borne illness attorney who has ties to our local
community.
To thank the critical ‘Food from the Bar’ sponsors and
donors, SBWL and the Foodbank held a Reception on August 25 at the Foodbank of Santa Barbara offices at 1525
State Street.
Because the drive was such a success and received strong
support, SBWL is pleased to announce it will coordinate a
‘Food from the Bar’ Drive on an annual basis. To learn more
information about the Foodbank before next year’s Drive,
please visit their website at http://www.foodbanksbc.org/
index.html.
Thank you to those who made the First Annual ‘Food
from the Bar’ Drive a major success!
Special thanks to the following law
firms that served as drop-off locations:
Hager & Dowling, Law Offices of John J. Thyne
III, Brownstein|Hyatt|Farber|Schreck, Ghitterman,
Ghitterman & Feld, and Ehlers & Fairbanks, PC.
Special thanks and recognition to the following donors: Inns of Court members, SBCBA Board
members, Matt Clarke, Mullen & Henzel, William
Duvall, Rebecca Eggeman, Naomi Dewey, Angela
Roach, Jennifer Yates, Brandi Redman, John Thyne,
Katy Grahan, SBWL members, Jennifer Glimp, Laura
Dewey, William Marler, Judge Colleen Sterne, Judge
Jean Dandona, Mischa Barteau, Joseph Allen, Matthew Long, John Gherini, Rabobank, SB Barristers,
SBWL, SBWLF, Lindsey Parks, Terry Utterback,
Elizabeth Kapp, Katy Graham, Janet Vining Mitchell,
SBLSA. Notably, numerous additional donations
were made that were not identified on the public list
with the Foodbank. Thank you to all of the donors
who made the Drive a success.
25
Criminal Justice
Sanger, continued from page 17
demonstrated the symptoms before the age of eighteen.
This is a developmental issue as opposed to the result of
some factor after age eighteen. Of course, eighteen is arbitrary since brain development continues after eighteen.
But that is the diagnostic and legal cut off.
The practical problem involved in evaluating an adult is
doing historical research to determine if there is evidence
of mental retardation years ago or, in some cases, decades
ago. Many of the people on death row and some of the
people in the trial courts now being tried for capital offenses
are older adults and even senior citizens. Current IQ tests
may be skewed low because the subject is suffering from
some other brain disorder or, perhaps, dementia. Testing
scores may be higher due to the practical effect of having
been administered multiple tests over the years. However,
a varied battery of other properly administered tests over a
period of several days can usually give a neuropsychologist
a good sense of the validity of the FSIQ tests.
In addition, research into childhood tests administered
in schools and other institutions can be helpful. Nevertheless, many of the instruments used in the 1930s, 40s, 50s
Russell R. Ruiz
805.895.5739
[email protected]
Available for hourly contract civil litigation
support work. Over 25 years local civil litigation
experience. Law & Motion pleadings and
appearances; court appearances; depositions; any
other necessary civil litigation support required.
and 60s are obscure today. They were not well normed
(often to limited populations for particular purposes) and
sometimes not well designed. They are also subject to the
vicissitudes of the mode and professionalism with which
they were administered. As mentioned before, group tests
are particularly unreliable. So, the testing, if any, as a child
for a now adult subject may or may not be of much help.
Adaptive functioning testing can also be problematic for
older subjects. Many times, the best people to address social
functioning are dead or unavailable. Mothers, fathers, close
siblings and others may have been able to help, but now
are not around or their memories have become much more
generalized about events decades ago. It is not hopeless and
good investigation can turn up alternative witnesses and
materials, but the passage of time is still an impediment to
an accurate assessment.
Conclusion
One has to question the wisdom of making life and death
decisions on such an arbitrary basis. No matter where we
draw the line, a developmentally disabled person on one
side of it will live while another will die. This is exacerbated by the fact that the line is not susceptible to being
drawn clearly.
In the next and final column in this Criminal Justice series
on the death penalty and mental retardation, we will look
at the latest science on the etiology of mental retardation.
There have been remarkable discoveries in genetics but
also in epigenetics which show the influence of social,
emotional and other environmental influences on cell development that account for multi-generational changes as
well as changes caused by factors in utero and during early
development.
Endnotes
1 Atkins v. Virginia, 536 U.S. 304 (2002)
2See, Intellectual Disability: Definition, Classifications and Systems of
Support, (11th Ed., 2010), American Association of Intellectual and
Developmental Disabilities which makes reference to the prior
editions (citations available on request).
3 Wechsler Adult intelligence Scale. The WAIS was developed in
1939, followed by the WAIS-R in 1981, the WAIS III in 1997 and
the current, WAIS IV created in 2008.
4 Wechsler Intelligence Scale for Children. It was created in 1949
and, following the pattern for the WAIS, is now in its fourth
iteration normed in 2002.
5 It is currently in its fifth edition normed on the census of 2000. It
generally is used for children and young adults.
6 Flynn, J. R., Massive IQ gains in 14 nations: What IQ tests really
measure, 101 Psychological Bulletin, 171 (1987).
SAVE
THE
DATE
October 23, 2011, 1 – 5pm
Montecito Country Club, Santa Barbara
A benefit for
Legal Aid Foundation of Santa Barbara County
Errata: In part one of this article, footnote 4, the sentence
“Treaty or Rome” shoud read “Treaty of Rome.”
26
Estate Planning/Probate Law Section
MCLE Luncheon Announcement
MENTAL HEALTH (LPS)
CONSERVATORSHIPS FOR CLIENTS/
BENEFICIARIES WITH MENTAL
HEALTH ISSUES
Stephen J. Hillman
USDC Magistrate Judge
Civil Consent Pilot Project
Date:
Date:
Thursday, October 13, 2011
Thursday, September 22, 2011
Time:
Time:
12:00 to 1:30 p.m.
Noon – 1:30 p.m.
Place:
Place:
Santa Barbara College of Law
20 East Victoria, Room 3
Santa Barbara College of Law; 20 East Victoria, Room 3
Presenters:
Lawrence T. Sorensen, Esq.
RUBENSTEIN & SORENSEN MEDIATION (Moderator)
Deedrea Edgar, Esq.
SANTA BARBARA COUNTY PUBLIC DEFENDER’S
OFFICE
Speaker:
Stephen J. Hillman, Chief Magistrate Judge of the Central
District of California
Details of Topic:
After a full review of the first two years of the Magistrate
Judge Civil Consent Pilot Project, the Court recently extended the opportunity for civil practitioners to consider
consenting to having a Magistrate Judge assigned to their
case for all purposes, including trial. The Court also reinstituted the former Consent List of Magistrate Judges.
Learn the answers to the potential benefits of consenting
to Magistrate Judges for all purposes and what basic rules
governs both the Pilot Project and renewed Consent List.
Arlene Diaz
SANTA BARBARA COUNTY PUBLIC GUARDIAN’S
OFFICE
Details of Topic:
The presenters will discuss the procedures available
to getting assistance for clients and beneficiaries with
mental health issues through the Mental Health (LPS)
conservatorship system.
MCLE:
l hour credit - general
Lunch Choices:
MCLE:
Choice of sandwich or salad, with chips, cookies and
drinks.
l hour credit (pending approval)
Lunch Choices:
Variety of sandwiches, salads, fruit, cookies and drinks
catered by South Coast Deli.
Price:
$35.00 for SBCBA members, $40 for non-members
RSVP:
Price:
Please RSVP before October 6, by e-mail to Donna@
rogerssheffield.com or by telephone to Donna Misbeek at
805-963-9721. Make checks payable to Rogers, Sheffield
& Campbell, LLC. Mail to Rogers, Sheffield & Campbell,
Attn. Donna Misbeek, P. O. Box 22257, Santa Barbara,
CA 93121.
$25.00 for SBCBA members, $30 for non-members
Please RSVP before Monday, September 14, by e-mail
to [email protected] or by telephone to Megan
Phillips at 805-966-1501 and make checks payable to Mullen & Henzell. Mail to Mullen & Henzell, Attn. Megan
Phillips, 112 E. Victoria Street, Santa Barbara, CA 93101.
A special thanks to Josh
McClung who donates his
services to keep the Santa
Barbara County Bar office
green.
September 2011
27
The SANTA BARBARA COUNTY BAR
ASSOCIATION presents:
A Reception with the Appellate
Justices of Division Six
Wednesday, October 26, 2011
Hon. Arthur
Gilbert
Hon. Paul H.
Coffee
Hon. Kenneth
R. Yegan
Hon. Steven Z.
Perren
At the Santa Barbara Jury Assembly Room
1108 Santa Barbara Street
_____________________
5:30 P.M. – 7:30 P.M.
Delicious Light Fare and Refreshments
____________________
1 MCLE Credit
SBCBA Members: $45
Non-Members: $50
Students and Paralegals: $25
_____________________
Please mail completed form along with your check payable to:
15 West Carrillo Street, Santa Barbara, CA 93101
805.569.5511
Name(s) ____________________________
___________________________________
Phone Number_______________________
Amount Enclosed______________________
28
SBCBA Real Estate/Land Use Section
Bankruptcy, Short Sales, and Foreclosures, Oh My!
Speakers:
John Thyne III, Jason Toon, and Matthew
Rumley
Price:
$30.00 for SBCBA members- $35.00 for Non-members
Reservation Deadline: September 15, 2011.
Please RSVP (preferably via e-mail) with menu selection
and mail check to:
Bret A. Stone (805) 898-9700
PALADIN LAW GROUP® LLP
E-mail: [email protected]
John Thyne III served as a staff attorney for the bankruptcy court in the 10th circuit before coming to Santa
Barbara. He currently owns and operates the Law Offices
of John Thyne III, which specializes in bankruptcies, real
estate law, civil litigation and entertainment law. He also
owns and operates Goodwin and Thyne Properties.
Jason Toon has been practicing personal and business
debtor and creditor bankruptcy for 15 years in 3 different states and 7 Federal districts. With an eye towards
the details, Mr. Toon acts as a forensic analyst into a
debtor’s assets and liabilities with the goal of protecting
the debtor’s exemptions in their assets while discharging
all of the allowable debts.
Matthew Rumley has extensive real estate finance,
investment and debt management experience and has
been working with John Thyne since January of 2011 as
a bankruptcy attorney.
Make checks payable to “Santa Barbara County Bar Association” and mail to:
15 West Carrillo Street, Suite 106
Santa Barbara CA 93101
THE COURT HONORS ATTORNEY
VOLUNTEERS
Details of Topic:
The Annual Superior Court Pro Bono Volunteer
Thank You Luncheon will be held on September 12 at
the University Club from noon to 1:30. The Superior
Court will host the luncheon for the attorneys who
volunteer their time to serve as mediators, settlement masters and pro tem judges in various court
programs. In addition to the luncheon, the attorneys
will receive a certificate of appreciation to honor their
contributions. The chair of the committee for the
event, The Honorable Denise deBellefeuille remarked
that “The Superior Court of Santa Barbara has long
partnered with the generous and skilled lawyers in
our community who volunteer their time to the court
in order to help litigants mediate and settle their
lawsuits, saving them time, money and the stress of
trial. The Court is grateful to the bar for its service to
Justice and is happy to honor the volunteers with a
luncheon September 12, 2011 at the University Club.
This will be an especially poignant occasion, as we
remember two lions of the bar who served the court
with distinction for many years: Paul Fritz and Carl
Gans. The recipient of the annual Judge William J.
McLafferty Pro Bono Volunteer of the Year Award
will be announced at the luncheon.” In addition,
Lifetime Achievement Awards will be presented.
Bankruptcy, short sales, and foreclosures – the ubiquitous
news of the day! This timely program will cover in broad
strokes everything you need to know about the legal, tax,
and credit implications of short sales and foreclosures. The
experienced panel will explain the rules affecting transfers
of property prior to filing bankruptcy, the means test,
qualifying for bankruptcy, the implications of bankruptcy
and short sales, foreclosures in bankruptcy, automatic
stays, homestead exemptions, and lien stripping. Don’t
miss this opportunity to come up to speed on these extremely relevant issues.
MCLE:
1 hour credit (subject to approval)
Date:
September 22, 2011
Time:
12:00 p.m. – 1:15 p.m.
Place:
University Club
1332 Santa Barbara Street
Lunch:
There will be a buffet lunch which will include mixed
greens, salmon with a curry sauce, slow roasted turkey,
wild rice, and asparagus.
September 2011
29
September 2011
Calendar
SUNDAY
MONDAY
TUESDAY WEDNESDAY THURSDAY
FRIDAY
SATURDAY
1 23
Family Law
Section Morning
Coffee
456789
10
NSBCBA Free Child
Support and Custody
Community Forum
Santa
Barbara Lawyer
Submission Deadline
11121314 151617
SBLA Latino
Achievement in Law
Celebration
Real Estate/
18192021222324
Land Use
SBWL MCLE
MCLE Luncheon
SBWL Annual Donor
Appreciation &
Awards Dinner
Estate Planning/
Probate Law MCLE
Luncheon
25262728293031
2011 SBCBA SECTION HEADS
Alternative Dispute Resolution
David C. Peterson
441-5884
[email protected]
Debtor/Creditor
Section Heads Needed
Herb Fox
[email protected]
Elder Law
Denise Platt [email protected]
Jody Moore [email protected]
Civil Litigation
Scott Campbell
Client Relations
Thomas Hinshaw [email protected]
Lol Sorenson [email protected]
Nicole Champion [email protected]
899-4777
604-7130
604-7130
963-9721
729-2526
649-1389
963-4110
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]
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
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 sett le your case
Real property
Probate
Business
Family business and succession
Employment
Personal injury
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
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• 
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• 
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• 
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• 
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• 
• 
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 • 
September 2011
31
Prsrt Std
U.S. Postage Paid
Santa Barbara, CA
The Santa Barbara County Bar Association
15 W. Carrillo St., Suite 106
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 BarbaraLawyer - Santa Barbara County Bar Association

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