W - Sacramento County Bar Association

Transcription

September/October
2012
The Administrative
Law Section –
On the Move
www.sacbar.org
Cover photo by MaryBurroughsStudio.com
Operation Protect
and Defend
Hosts Annual
Awards Dinner
Judge Judy Holzer Hersher:
The SCBA’s 2012 Judge of the Year
Editor’s Message
The Passage of an Era
By Jack Laufenberg
T
his month marks the passage of an era. After more
than 32 years of faithful service, Executive
Director Carol Prosser is retiring from the Sacramento
County Bar Association.
Carol, who has served as the executive director since
2001, started her career with the Bar Association as a secretary to then Executive Director Robert M. Stone in 1980.
Born in Redding, California, Carol worked for the Daily
Recorder in Sacramento and the Daily Journal in Los Angeles
before coming to the Bar. After working as a secretary for 9
years, she was promoted to executive assistant in 1989 and
then executive director in 2001. Along the way, she also
served as editor of the Docket, the precursor to the
Sacramento Lawyer, from 1986 to 1987.
Carol, who never gossiped about past SCBA presidents - or really anybody, for that matter -- offered the following as
some of the more "printable" tidbits over the last 30 years:
• In 1980, and for the next 10 years, the electric typewriter reigned supreme at the SCBA offices;
• In 1984, the SCBA elected its first female president,
Judith R. Campos;
• In 1990, computers were purchased for the entire
staff;
• In 1991, the first fax machine was purchased; and
• In 1997, the Docket was renamed the Sacramento
Lawyer.
I have known Carol since I first began serving on Bar
Council – now the Board of Directors – in 1999. I have
never known anyone so committed to doing the right thing;
for the right reasons. Despite her reserve, every once in a
while I was able shake loose a nugget or two of information
from those notoriously tight lips. If memory serves, her two
favorite SCBA presidents were the late Bion Gregory and
Samuel L. Jackson. I served on Bar Council with Bion, but
never had the pleasure with Mr. Jackson. I would have
liked to have had the experience.
Good luck Carol. We will miss you.
EXECUTIVE DIRECTOR
Carol Prosser
OFFICERS
June Coleman - President
Jean-Pierre Francillette - 1st Vice President
Bruce Timm - 2nd Vice President
Stacy Moak - Secretary Treasurer
COURTHOUSE STEPS
[email protected]
ADVERTISING - EVENTS
MEMBER CLASSIFIED ADS
Michelle Bender (916) 564-3780 x200
[email protected]
BOARD OF DIRECTORS
DIRECTORS AT LARGE
Mark Slaughter
Katie Patterson
Sonia Fernandes
Theresa La Voie
Richard Miadach
Jeannie Lee
William Schuetz
Sabrina Thomas
Dan Graulich
DESIGN AND LAYOUT
MaryBurroughsStudio.com
[email protected]
SACRAMENTO LAW FOUNDATION
Stephen Duvernay,
saclawfoundation.org
EDITOR-IN-CHIEF
Jack Laufenberg - [email protected]
STAFF EDITORS
Heather Cline Hoganson
SACRAMENTO LAWYER POLICY COMMITTEE
Samson R. Elsbernd
Helene Friedman
David Graulich
Coral Henning
Yoshinori H.T. Himel
Jack Laufenberg
4
SURFING FROM RIVER CITY
Coral Henning (916) 874-6013
[email protected]
SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2012
AFFILIATE REPRESENTATIVES
Asian Bar Association (ABAS)
Angela Lai
Barristers’ Club
Dan Tichy
Capitol City Trial Lawyers
Jack Vetter
Federal Bar Association
Meghan Baker
Hellenic Law Association of
Sacramento (HELLAS)
Vasilios Spyridakis
LaRaza
Michael Terhorst
Leonard M. Friedman Bar Association
Jeff Levine
Saint Thomas More Society
of Sacramento (STMS)
Herb Bolz
Sacramento Lawyers for
the Equality of
Gays and Lesbians (SacLegal)
Jeff Edwards
SACRAMENTO
COUNTY BAR
ASSOCIATION
MAGAZINE
Table of Contents
V O L U M E
1 1 3 ,
N U M B E R
5
•
S E P T E M B E R / O C T O B E R
2 0 1 2
LITIGATION
8
A View from the Civil Trial Bench: “The Cat’s Paw,” Me Too,” and the “Stray
Remarks” Doctrines: Admissible Evidence in Today’s Employment Trials
PROFILES
10 Lawyer Lore: The Unstoppable Nancy Sheehan
COVER STORY
14 Judge Judy Holzer Hersher: The SCBA’s 2012 Judge of the Year
COMMENTARY
20 Stirrings of Legal Reform in China: Will Juries Ever Sit in Judgment?
EVENTS
24 Operation Protect and Defend Hosts Annual Awards Dinner
14
SECTION & AFFILIATE NEWS
18 The Administrative Law Section – On the Move
22 The Barristers’ Club Update
28 Sacramento’s St. Thomas More Society Update
COMMUNITY SERVICE
30 Attorneys: Your Community Needs You! A Call to Arms to
Provide Pro Bono Legal Services
DEPARTMENTS
4
Editor’s Message
6
President’s Message
12 Law Library News
13 Surfing from River City
34
34
Calendar
Index to Advertisers
24
Sacramento Lawyer welcomes letters and article suggestions from readers. Please e-mail them to [email protected]. The Sacramento County Bar Association reserves the right to edit
articles and letters sent in for publication. Please contact SCBA 916-564-3780 x200 for deadline information, fax 916-564-3737, or e-mail [email protected]. Web page: www.sacbar.org.
Caveat: Articles and other work submitted to Sacramento Lawyer become the copyrighted property of the Sacramento County Bar Association.
Returns of tangible items such as photographs are by permission of the Executive Director only, by pickup at the SCBA office only.
South Asian Bar Association
Nirav Desai
Wiley Manuel Bar Association
Alana Mathews
Women Lawyers of Sacramento
Jamie Errecart
COMMITTEE / SECTION
REPRESENTATIVES
Lawyer Referral and Information
Service (LRIS)
Don Hansen
Conference of Delegates
Andi Liebenbaum
Indigent Defense Panel (IDP)
Kevin Adamson
Section Representative
Daniel Yamshon
Voluntary Legal Services
Program (VLSP)
Victoria Jacobs
SECTIONS
Administrative Law
Heather Cline Hoganson
Alternative Dispute Resolution
Ken Malovos
Appellate Law
Stephanie Finelli
Bankruptcy &
Commercial Law
Aaron Avery
Business Law
Sarra Ziari
Children’s Counsel
Diane Wasznicky
Environmental Law
Osha Meserve
Family Law
Judith Winn
Health Care
Brian Taylor
Labor & Employment Law
Jason Jasmine
Probate & Estate Planning
Thomas Reid
Real Property
Gregg Phillipp
Tax Law
Ciro Immordino
Worker’s Compensation
Ohnmar Shin
COMMITTEES
Bylaws
BJ Susich
Continuing Education of the Bar
Daniel Yamshon
Diversity Hiring and Retention
Linda Partmann
Electronic Media
Coral Henning / Heather Hoganson
Fee Arbitration
Ken Bacon
Judicial Review
Philip R. Birney
Judiciary
Diane W. Wasznicky
Long Range Planning
Bunmi Awoniyi
Membership
Heather Candy
Pictorial Directory
Herb Bolz
Sacramento Lawyer Policy
Jack Laufenberg
Sacramento Lawyer (USPS 0981-300) is
published bi-monthly by the Sacramento
County Bar Association, 1329 Howe Avenue,
#100,Sacramento, CA 95825. Issn 1087-8771.
Annual subscription rate: $6.00 included in
membership dues, or $24.00 for nonmembers.
Periodicals postage paid at Sacramento,
California. Postmaster: Send address changes to
Sacramento Lawyer, 1329 Howe Avenue, #100,
Sacramento, CA 95825. Copyright 1999 by the
Sacramento County Bar Association.
Each author’s commentary reflects his/her
individual opinion only and not that of
his/her employer, organization with which
he/she is affiliated, or Sacramento Lawyer
magazine, unless otherwise stated.
SEPTEMBER/OCTOBER 2012 SACRAMENTO LAWYER
5
President's Message
Fall – A Time for School
and a Time for Change
As
I look toward fall, my
mind always turns to
the start of school and change. In our
legal community, things are no different. Law students are beginning class,
and our affiliates are having events to
welcome the law students. High
school students are beginning their
classes too. SCBA’s involvement in the
Law and Public Policy Academy
(LPPA) -- formerly known as the
Sacramento Law Academy -- at C.K.
McClatchy High School is ramping
up. I hope you all saw the announcement seeking mentors for this worthy
SCBA program, which focuses on
educational opportunities for students from groups that are typically
under represented in legal careers. I
know the LPPA would love to have
more mentors or even volunteers who
want to be involved in the program in
other ways. For more information on
SCBA opportunities with McClatchy’s
LPPA, email [email protected].
The Operation Protect and Defend
program (OPD) is getting under way
as well. The program, founded in
2001 by a group of Sacramento
judges and lawyers headed by retired
Judge Frank Damrell, was created in
response to alarming statistics that
showed a significant percentage of
high school and college students
lacked even a basic understanding of
the Constitution and workings of the
U.S. government. It is designed to
work with local teachers in an effort
to offer high school civics enrichment
programs that cultivate student interest in American government, the
Constitution, and civic values.
Every year OPD, in conjunction
with its teacher members, develops a
curriculum for high school students
on some aspect of constitutional law.
This year, the curriculum involved the
6
Equal Protection Clause as applied to
undocumented immigrants. The curriculum then seeks to engage the students in a dialogue with judges and
lawyers about the Constitution, civil
rights and the responsibility to participate in our democratic society. High
schools throughout the Sacramento
region participate in the program,
which includes student writing and art
contests on that year’s chosen topic.
OPD culminates with the Law Day
dinner, which awards scholarships to
the top essay writers and artists.
One of the great aspects of this
program is the number of Sacramento
legal community members involved.
Andy Stroud, of Mennemeier, Glassman
& Stroud LLP, has chaired OPD for
years, which has continued to blossom
under his fantastic stewardship. Andy
stepped down as chair this year, with
Teri Block, an administrative law judge
with the State Personnel Board, taking
up the reins. Through the efforts of
Kimberly Lewellen of Downey Brand,
OPD has been awarded a $10,000
matching fund grant from Central
Valley Foundation if OPD can raise
$5,000 this fall. Almost all grant
money is used for student scholarships. Inquiries and donations can be
directed to Teri or the SCBA office.
And OPD is always in need of new
volunteers. Please contact Teri or the
SCBA office if you would like to assist
with this great program.
This is the time of year that we also
think about elections. In these times
of budget crisis, I cannot help but
think of the court budget issues. The
Sacramento Superior Court has
announced various changes that took
effect in July to counteract the reduction of its budget. Further changes are
possible if the Governor’s tax plan is
not approved by California voters in
By June D. Coleman
November. The changes include filing
most non-motion related civil pleadings through a court drop-box system.
The front counter will remain open
from 8:30 a.m. to 4:00 p.m., but the
drop box will be available until 5:00
p.m. for same day filing. The front
counter will have an express window
for filing or no more than two documents at a time, and two other windows for filing no more than seven
documents at a time.
Presiding Judge Laurie Earl recently sent a letter to those served by the
William R. Ridgeway Family Relations
Courthouse regarding the serious
impact that budget reductions have had
on the operations of that courthouse.
The court has had to close all but two of
the front-counter windows at this
courthouse, but hopes to be able to
open additional windows by October
1st. These additional windows may be
just a band aid to get us through the fiscal year. Other changes at the Family
Law Courthouse include filing all ex
parte applications in the department
where the matter will be heard, rather
than the front counter downstairs, limiting the time when ex parte matters
will be heard to 8:30 a.m. every morning, limiting the number of front-counter window filings to three cases at a
time (which will affect mostly runners
and other attorney-service providers) ,
and limiting one of the two front-counter windows to restraining order applications after 2 p.m. each day.
We also have a new face on the
Sacramento bench. The Governor
appointed Laurel D. White to the
Sacramento Superior Court. Newly
appointed Judge White has been
working with the U.S. Attorney’s
office as a federal prosecutor for 23
years, and has been honored by the
U.S. Department of Justice for her
work prosecuting internet child
pornography and human trafficking
cases. SCBA’s Bench Bar Reception, to
be held at the California Auto
Museum on October 20th, will give us
all a chance to welcome Judge While
to the Sacramento bench. More
details about the Bench Bar Reception
can be found on the back cover of the
Sacramento Lawyer.
Finally, the SCBA is sad to
announce the retirement of Carol
Prosser, our executive director. With
over 30 years of experience with the
bar office, Carol has been the face of
the SCBA. There is no way to describe
the loss Carol’s retirement will cause
the SCBA. Carol’s last day will be
September 30th. Please feel free to
stop by the bar office or call to talk
with Carol before she leaves.
As one door closes, another one
opens, or so they say. The SCBA is
excited to announce the hiring Larkin
Chenault as the incoming executive
director. Larkin currently hails from
Connecticut and has decades of experience as an executive director for various bar associations throughout the
country. His bar associations have
been honored for diversity work that
he shepherded. He has also been
instrumental in various pipeline projects, which have also received recognition. He oversaw the development a
pro bono program that dramatically
increased pro bono hours in the legal
community. He is also an advocate of
access to justice. Some of you may
have seen him in his initial, brief visit
the week of August 13th. He will be
back at the bar office the week of
September 10th. And he starts work
full time on October 1st. Larkin is
excited about working with the SCBA
and anxious to meet the Sacramento
legal community. I’m sure he will
quickly become a familiar face. Please
take the opportunity to introduce
yourselves to him.
Reach A
Variety of
Sacramento
Area Professionals
ADVERTISE IN
Sacramento Lawyer Magazine
Call (916) 564-3780 x200
7
Litigation
A View from the Civil Trial Bench:
“The Cat’s Paw,” “Me Too,” and the “Stray Remarks”
Doctrines: Admissible Evidence in Today’s Employment Trials
By Judge Judy
Holzer Hersher
This article represents the thoughts and opinions of the author and should not be considered court policy or the
opinion of other trial judges. Comments should be addressed to [email protected]
W
hether brought in federal or state court, plaintiffs
seeking damages for unlawful employment
actions must prove a discriminatory “animus” toward them
based on a protected status,1 a causal relationship between
that animus and an adverse employment action,2 and damages. More often than not, the evidence in support of the
claim is circumstantial and consists of comments made
about or actions taken against the plaintiff or others similarly situated. Sometimes the statements or conduct that
give rise to an inference of discriminatory animus are not
attributed to the final decision maker with respect to the
plaintiff’s employment status, but they are nonetheless
alleged to have tainted the process by which the decision
was made. Can these seemingly stray statements and actions
by others or against others come into evidence? According
to a series of recent cases, the answer is yes.
The 17th century fable of ‘The Monkey and the Cat’ by
French poet Jean de La Fontaine tells the story of co-conspirator “rogues” who plot to steal some tasty roasting chestnuts. (See
box insert for the published verse.) The monkey clearly is the
instigator. The cat is duped into pulling the chestnuts from the
fire, ostensibly for the benefit of both, but for his part the cat gets
his paws singed while the monkey gets the chestnuts. In modern employment law parlance, a “cat’s paw” has come to mean
a corporate defendant or supervisor who is used by another to
accomplish the other’s improper discriminatory purpose and
who, in the process, winds up with a money judgment against
them (i.e., burned paws). The California case often cited for
admitting statement and conduct evidence giving rise to someone becoming another’s cat’s paw -- and thereby tainting the
employment decisions with prejudice -- is Reeves v. Safeway
Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves).
William Reeves was a grocery clerk at Safeway for almost 30
years. Several women reportedly confided in him regarding
their claims of sexual harassment. Upon reporting the same to
his supervisor, Reeves met with resistance and antipathy as to
any effort to help the women. At some point, an alleged series
of incidents occurred where Reeves was charged with shoving
a female employee, using profanity, and being intoxicated on
the job. After an investigation and report by store security, a
8
Safeway district manager terminated him. Before firing him,
the district manager did not review his personnel file, did not
know of his commendations, and more importantly, did not
know that Reeves had reported sexual harassment claims on
behalf of women at the store. She also did not know that two
of the alleged witnesses to Reeve’s “inappropriate” conduct
were persons Reeves had reported for sexually harassing the
female employees and who had motive to wanted to see him
gone. In short, the Safeway district manager, who based her
firing decision on the security department report, was unaware
of any reasons why the witnesses against Reeves would “shade
the truth.” She, and the store, thus sought to exonerate themselves from any discriminatory or retaliatory animus. (Reeves,
supra, 121 Cal.App.4th at p. 104.)
No More the “Defense of Ignorance”
Safeway’s “defense of ignorance” with respect to any discriminatory animus was rejected by the appellate court as an
archaic paradigm. According to the justices, in modern day
enterprises decisions that significantly affect personnel are
“rarely if ever the responsibility of a single actor. As a result,
unexamined assertions about the knowledge, ignorance, or
motives of ‘the employer’ may be fraught with ambiguities,
untested assumptions, and begged questions.” (Reeves, supra,
121 Cal. App. 4th at p.108.) After reviewing the appellate
cases on point, the Sixth Appellate District held that ignorance
of the motives behind those pushing for an adverse employment action “does not afford a categorical defense unless it
extends to all corporate actors who contributed materially to an
adverse employment decision.” (Id. at 109) In a section entitled “Cat’s Paw,” the court concludes that if a supervisor makes
another his tool for carrying out a discriminatory action, the
original actor’s purpose will be imputed to the tool, or through
the tool to their common employer. (Id. at 113.)3
The application of the cat’s paw theory is consistent with
the rejection of the strict application of the “stray remarks doctrine” discussed in Reid v. Google, Inc. (2010) 50 Cal. 4th 512
(Reid). Reid involved a former Google executive who sued for
age discrimination under FEHA. In a motion for summary
adjudication, he presented evidence that his co-workers and
other high-level employees said he was “slow,” “fuzzy,” “sluggish,” and “lethargic. He also presented evidence that others
said he “lack[ed] energy,” “did not display a sense of urgency,”
and had ideas that were “obsolete” and “too old to matter.”
Co-workers also reportedly called him an “old man,” an “old
fuddy-duddy,” and joked that his office placard should be an
“LP” instead of “CD.” His case was thrown out on summary
judgment, but reinstated on appeal, in large part because the
comments made by those around him constituted circumstantial evidence of an animus towards those over 40, and the
fact that some of these commentators benefited by his
removal. As the California Supreme Court explained, “stray
remarks” are discriminatory comments from which a reasonable trier-of-fact could infer a discriminatory intent and were
made by either: (1) a decision maker in a context unrelated to
the adverse employment decision, or (2) by one other than
the formal decision maker, but who is in a position to influence the decision. (Id. at pgs. 536-545.)
In rejecting strict application of the stray remarks doctrine to eliminate evidence in support of a plaintiff’s case, the
California Supreme Court, citing to both federal and state
decisions, noted that the doctrine “contains a major flaw
because discriminatory remarks by a non-decision making
employee can influence a decision maker. ‘If [the formal
decision maker] acted as the conduit of [an employee’s] prejudice -- his cat’s paw --the innocence of [the decision maker]
The Monkey and The Cat
by Jean de La Fontaine
Jocko the Monkey, Mouser--his chum, the Cat,
Had the same master. Both were sleek and fat,
And mischievous. If anything went wrong,
The neighbors where not blamed. Be sure of that.
Jocko, 'tis said was something of a thief;
Mouser, if truth be told, would just as lief
Much stolen cheese as chase the midnight mouse.
The praise bestowed on either must be brief.
One day these rogues, stretched flat before the fire,
Saw chestnuts roasting. "Ah! Could we conspire
To jerk them out," said Jocko, "from the coals,
We'd smash the shells and have our heart's desire.
"Come, Brother Mouser! This day 'tis your turn
To do some bold and desperate thing to earn
A reputation. You, who are so quick,
Snatch out the nuts before they start to burn.
"Alas! That I, a Monkey, was not made
To play with fire. But you are not afraid."
So Mouser--pleased, like many a cat or man,
With pretty words--sly Jocko's wish obeyed.
Into the fire he put a practiced paw:
Out came a chestnut clinging to his claw-Another and another. As they dropped
Jocko devoured them, whether roast or raw.
A servant enters. Off the robbers run.
Jocko, you may be sure, enjoyed the fun.
But Mouser's paw is sadly singed--for what?
Just to get nuts for Jocko. He got none.
would not spare the company from liability.’[Citations]”
(Reid v. Google, Inc., supra, 50 Cal. 4th at pgs. 539-542.)
“The Task of Disambiguating
Ambiguous Utterances…”
The Court added: “Although stray remarks may not
have strong probative value when viewed in isolation, they
may corroborate direct evidence of discrimination or gain
significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were
made in relation to the adverse employment decision, and
in what context they were made are all factors that should
be considered.” (Reid v. Google, Inc, supra, 50 Cal. 4th at p.
541.) It then added: “[T]he task of disambiguating
ambiguous utterances is for trial...”4 (Id. at p.541, citing to
Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402.)
For a recent example of the interplay between the stray
remarks doctrine and the cat’s paw theory, see DeJung v.
Superior Court of Sonoma County (2008) 169 Cal.App. 4th 533.
In DeJung, comments allegedly made by the Sonoma County
Presiding Judge and members of the court’s Executive
Committee that they were seeking a younger man for the court
commissioner’s job were found inadmissible for purposes of
defeating a grant of summary judgment in favor of the
Superior Court.5 The appellate court reversed. It reasoned that
a trier-of-fact could reasonably infer from the comments that
the decision of the interview committee, and ultimately the
entire bench, not to rehire DeJung were tainted by discriminatory animus, even though some of the judges did not make or
have knowledge of the earlier comments. The court held:
“Under the established case law…DeJung need not demonstrate that every individual who participated in the failure to
hire him shared discriminatory animus in order to defeat a
summary judgment motion.” (Id. at p. 551.) Echoing the sentiments expressed in Reeves, supra, the DeJung court continued: “’[A]n individual employment decision should not be
treated as a... [‘] watertight compartment, with discriminatory
statements in the course of one decision somehow sealed off
from…every other decision. … [‘]’” [Citations] (Ibid.)
The recent United States Supreme Court case Staub v.
Proctor Hospital (2011) 131 S.Ct. 1186 further cements the
cat’s paw theory of admissible evidence. In Staub, an
employee claimed unlawful employment discrimination
prejudice against him because of his army reserve duties.
The person (Linda Buck) who ultimately terminated plaintiff, did so without animus and without knowledge of the
personal animus of others, including plaintiff’s immediate
supervisor, Janice Mulally, and Mulally’s supervisor, Michael
Korenchuk. However, it appeared Buck was prompted to
take adverse action against the plaintiff by Mulally and
Korenchuk, acting for themselves and others, who were
angered by the extra work they had to do because of plaintiff’s military duty. As in Reeves, the terminating supervisor
Continued on page 19
9
Profiles
Lawyer Lore: The
Unstoppable Nancy Sheehan
By Brendan J. Begley
S
uccessful civil and criminal litigators and mediators
often seem to possess solid storytelling (or story-dissecting) capabilities coupled with a strong intellect and
good people skills. Even with those traits, hard work also
is required in order to thrive. Does it take more than that
for a woman attorney to become one of the managing partners in a large Sacramento litigation
firm? Ask Nancy Sheehan, who was
elevated to co-managing partner at
Porter Scott in 2011.
“Not long ago woman lawyers had
to be twice as good just to be equal,
especially if they were litigators,”
Nancy remarked. “Now women
attorneys can do everything male
lawyers can do,” she bantered, “but
they just have to do it backwards in
high heels.”
Before becoming Porter Scott’s first
female co-managing partner, Nancy
was the firm’s first woman shareholder – but she was not its first associate
of the fairer gender. “There was
another associate who also was named
Nancy Sheehan
Nancy,” she reflected. After a moment
of contemplation, she joked self-deprecatingly that she
sometimes wonders if she was assigned to work with a particular partner after the other Nancy left “so he wouldn’t
have to learn to call out a new name when he wanted to
summon the associates on his team.”
As much of a milestone as it was for Nancy to become a
partner in 1990, it never occurred to her that she wouldn’t
reach that plateau. “I knew from years of working with the
shareholders there that the vote would be on the merits,”
she explained. “I wouldn’t have stayed if I thought they
would elevate me as a token female.”
And what a list of merits Nancy accumulated to win her
elevation to shareholder and then to become a managing
partner. Over her career she has tried over 35 employment
cases (her first in 1986), of which 28 resulted in a complete
defense verdict. She was admitted to the American Board of
Trial Attorneys (“ABOTA”) ten years ago, and became its
local chapter president in 2009. The following year, Nancy
was admitted to the International Academy of Trial Lawyers
(“IATL”), and then inducted into the American College of
Trial Lawyers (“ACTL”) in 2011. ABOTA, IATL, and ACTL
are all peer-review based groups, and attaining membership
in any of them requires a lawyer to surmount high hurdles.
10
Most recently, Nancy was pictured on the cover of the 2012
edition of Northern California Super Lawyers and included in
that publication’s list of the top 100 lawyers and the top 50
women attorneys.
Regardless of one’s gender, winning trials and admission to prestigious professional associations alone is not
enough to become an effective managing partner, according to Nancy. “You
need to gain the respect of the other
shareholders, as well as the associate
attorneys and staff, and be able to look
at an issue from all sides,” she counseled. “You have to be a firm boss to
get your subordinates to be all that
they can be, but you also have to be
diplomatic, fair, reasonable, and openminded. Of course, developing such
skills also helps you to be a better
courtroom litigator, too.”
Anyone who has seen Nancy in
action may attribute her storied accomplishments to her thoroughness, poise,
attention to detail, and genuine rapport
with jurors, judges, clients, and colleagues. However, when she allows
herself to accept credit for her own achievements, Nancy
modestly ascribes it to her zeal for checklists of all sorts.
For example, she continually updates one checklist of possible defenses in employment-law cases and another identifying the steps (and pitfalls) in removing a case to federal
court. Her fanaticism for such lists could be thought by
some to be quirky. However, her idiosyncrasy in this regard
is deeply beloved by her clients – and probably scornfully
cursed by her opponents – especially when they see the
results that her approach yields.
With palpable sincerity, Nancy tells those who ask that she
owes a good deal of her success to the nationally renowned
trial attorney and shareholder for whom her firm is named,
Russell Porter. “Russ was a fabulous mentor, very open
minded, and he never expected more of you simply because
you were a woman,” Nancy observed. “At the same time, he
never expected less of you because of your gender either.”
While she is a role model to many women lawyers and
somewhat of a pioneer among women attorneys in
Sacramento, Nancy has had a few female role models in the
industry herself. For example, she points to Frances Newell
Carr (the first woman to be appointed to the bench of the
Sacramento County Superior Court who went on to serve as
a justice at California’s Third Appellate District) as well as a
number of women litigators who are still practicing; namely, Noel Ferris, Suzanne Trimble, Patricia “Pat” Tweedy,
and Carol Wieckowski.
A woman lawyer co-managing a large firm may not seem
wildly out of the ordinary or unattainable in today’s world,
but getting to that point is quite a feat looking back at the
attitudes of jurors, judges, other lawyers, and even some
clients when Nancy started practicing law not so long ago.
Wagging her finger as though scolding, and in a half-serious
tone of mock forbiddance, Nancy recollected that “none of
those very capable women would have been seen wearing
pants of any type to court back when I began practicing.”
She observed that she and some other women lawyers
started wearing pants in federal-court trials only in the last ten
years or so. That delay “was not because of the judges,” she
pointed out, “but because of juror attitudes.” It may seem
inconceivable to young women entering the practice of law
today that they would even have to consider such an issue.
In the very first case that she tried, Nancy encountered
what she calls “the proverbial little old lady on the jury.” As
the trial proceeded, Nancy found herself on the elevator
with this juror who was beaming a wide grin. Nancy tried
politely to avoid the gaze, keeping in mind the ethical rules
against ex parte communications with jurors. Nonetheless,
the juror volunteered aloud that she loved to see the outfits
Nancy wore to court every day.
Reflecting on that interaction, Nancy laughs at herself
for anticipating that the juror was going to say how proud
she was to see a woman lawyer blazing a trail in a maledominated legal field or how impressed she was by Nancy’s
cross-examinations. But Nancy also was aware that jurors
likely would pay little attention to the suits that male attorneys wore to court. Instead they would focus on more substantive elements, such as his grasp of the facts or ability to
flesh out important testimony.
Whereas juror attitudes impacted the dress code, the
remarks of a handful of judges toward women attorneys
could be even more off-putting. Without disclosing the
venue in which it occurred, but with a smile displaying
some lingering disbelief, Nancy recounts a court appearance where a male judge spent the first few moments of a
hearing discussing baseball with opposing counsel, who
also was a man. Thereafter, the judge inquired whether he
should address Nancy as “Miss or Mrs. Sheehan.” When
Nancy answered, “Ms.,” the judge sternly repeated the
options to her: “Is it Miss or Mrs. Sheehan?”
Upon hearing that, Nancy crossed her arms, displayed a
hint of a scowl, and responded as nonchalantly as she
could, “Whatever the court would like.” She might not
respond exactly the same way today. In her view, “showing
any type of chip on your shoulder is the wrong approach.”
She advises women attorneys, “Don’t let anyone abuse you,
but don’t expect to be treated differently either. Those people who treat you differently or abuse you are not worthy of
your respect.”
It is fair to say that other attorneys also were susceptible
to being “a bit less than enlightened” in terms of interacting
with women lawyers back then. Nancy once attended a
deposition where opposing counsel was “very rude and
vicious with his objections, and he shouted at one point,
‘Perhaps if you had listened in law school you would know
why I won’t let my client answer that question.’” That
prompted Nancy to take a break to consult with a male
shareholder at her firm.
While her boss’s response may not have appeared to be
the hallmark of chivalry at the time, Nancy says it was the
best thing he could have done for any lawyer in her position, male or female. “He told me firmly that I had to march
back in there and take control of the depo, and that he
could not go with me to straighten out opposing counsel
because I would lose credibility.” As a shareholder, Nancy
has replicated that gesture for a number of attorneys under
her tutelage (including the author of this article).
Sensing that a woman attorney could be a distraction for
judges and jurors, clients were not always eager to hand
over litigation to female lawyers in the 1980s. However,
after triumphing in so many trials and winning numerous
awards, it has been many years since Nancy has had a client
express concern about having a woman at the helm of a
case. “And even if any of them did have such reservations,”
she noted, “there are plenty of men in my office to fulfill
those desires.” Just as judges, lawyers, and clients have
become more accepting of women in court over the years,
Nancy believes jurors have changed their views – and she
senses that “younger ones no longer marvel that a woman
can be an attorney.”
As far as she and other women lawyers have come over
the past decades, Nancy still sees remaining gaps to bridge.
“We need to get to the point where we’re not thought of as
‘lady lawyers,’” she commented. “I hope before I chit my
last billable hour that all law firms have come to the place
where no one can say, ‘There is no woman on that floor.’”
Nancy sees signs of the Sacramento legal community
getting closer to that point. In fact, she lights up when she
remembers a recent case with multiple parties and attorneys
where she realized midway in the litigation that all of the
lawyers were women. “It’s not that I don’t want male attorneys to be involved in a case,” she explained, “but I did feel
a sense of excitement when I saw that such configurations
can happen in today’s world.”
Since becoming a lawyer, Nancy has been very generous
in passing on her knowledge to many young women and
men. At the same time, she has mentored scores of attorneys
of both genders and worked closely with them to help
improve their legal talents. She continues those pursuits
even with her increased duties as a co-managing partner.
Nancy unquestionably is a great nurturer of Sacramento’s
lawyer lore.
Brendan J. Begley is a former chair of the SCBA Appellate Law
Section and head of the Appeal and Writs Group at the Weintraub
Tobin Chediack Coleman Grodin Law Corporation. He is also a
California State Bar certified appellate law specialist.
11
Law Library News
Spotlight on the Collection:
California Benchbooks
Compiled by Kate Fitz, Public Services Librarian, Sacramento County Public Law Library
F
or practical, succinct information about court procedures,
judges and lawyers have traditionally
turned to “benchbooks.” Benchbooks
(also called “bench guides” or “judge’s
guides”) are intended to be quick references for judges, particularly newer
judges and pro tems, dealing with
common courtroom issues. Some of
the topics covered, such as traffic
court, are hard to find in other practice guides.
Benchbooks are often written or
commissioned by panels of judges.
They are not primary sources, but they
often provide citations to applicable
law. Occasionally they may approach
the level of authority: In In re Koehler
(2010) 181 Cal. App. 4th 1153, the
Court of Appeal scolded the judge for
failing to follow the standards for contempt outlined in Courtroom Control:
Contempt and Sanctions, California
Judges Benchguide, published by the
California Center for Judicial
Education and Research (CJER).
The CJER, which is part of the
Administrative Office of the Courts,
Main Library
813 Sixth Street, First Floor
Sacramento, CA 95814-2403
916-874-6011
www.saclaw.org
www.facebook/saclawlib
www.twitter/saclawlibrarian
NEW ACQUISITIONS
Employment Damages and Remedies
California CEB
KFC310 .E56
Opposing California Civil Motions:
Model Opposition Briefs
Thomson Reuters
KFC1012.O6 P37
12
produces three types of benchbooks
on a variety of topics, from general
procedures to very specific topics such
as management of gang-related cases.
The Law Library has a comprehensive
collection of all of these benchbooks.
The
set
California
Judges
Benchguides is broken into dozens of
topics, each treated in a booklet which
can be removed from the three-ring
binder for quick reference. These are
strictly procedural guides, walking the
judge through the steps of a particular
type of hearing. They often include
scripts for the judge’s use in court.
Most types of court cases are covered,
including traffic court, adoptions,
criminal court, family court, probate
and conservatorship matters, juvenile
court, small claims court, and general
judicial matters. Generally these do
not discuss the substance of the law,
but they are a good source of citations
to procedural law.
CJER also produces several standalone “bench handbooks” on special
topics. These tend to provide more indepth treatments of their particular
Coping With Psychiatric and
Psychological Testimony
Oxford University Press
KF8965 .Z58
The American Bar Association Guide to
Credit & Bankruptcy:
Everything You Need to Know About Credit
Repair, Getting and Staying Out Of Debt, and
Personal Bankruptcy
American Bar Association
KF1524.85 .A46
You and Your Aging Parents:
Guide to Legal, Financial, and Health Care
Issues
American Bar Association
KF390.A4 Y67
topics, which, in addition to the management of gang-related cases, include
ADR, child victim witnesses, the
Indian Child Welfare Act, improving
fairness and access to the courts, and
dealing with self-represented litigants.
A more substantive series of books,
California Judges Benchbook: Civil
Proceedings, is co-published by CJER
and the West Company. These differ
from other civil practice guides because
the judicial perspective is paramount,
so they include tips on controlling
courtroom behavior, levels of judicial
discretion, and factors judges should
consider when ruling from the bench.
The series includes Civil Proceedings –
Before Trial, Civil Proceedings: Discovery,
Civil Proceedings – Trial, and Civil
Proceedings After Trial.
West also publishes California
Judges Benchbook: Small Claims Court
and Consumer Law, which is updated
annually and includes substantive discussion of consumer protection, wage
and hour, and homeownership and
rental laws.
Continuing Education of the Bar
(CEB) produces several benchbooks as
well. California Judges Benchbook:
Domestic Violence Cases in Criminal
Court and California Judges Benchbook:
Search and Seizure are portable paperbacks suitable for quick consultation.
Jefferson's California Evidence Benchbook, published by CEB since 1972,
has evolved into a loose-leaf format,
but is still written in a quick-reference
outline style, stating the evidentiary
rule, followed by judicial comment
and illustrations.
For concise statements of the law
and insight into the judicial perspective, check out these books!
Surfing From River City:
Breast Cancer Events for October
Compiled by Robyn M. Moltzen, Public Services Librarian,
Sacramento County Public Law Library
October is National Breast Cancer
Awareness Month. This annual international health campaign is organized by
major breast cancer charities to increase
awareness of the disease and to raise
funds for research into its cause, prevention, diagnosis, treatment, and cure. The
campaign also offers information and support to those affected by breast cancer.
If someone you know or love is affected
by breast cancer, there are several local
events in October that you can participate
in to help raise funds for or awareness of
this terrible disease.
American Cancer Society Relay for Life
Saturday, October 6, 2012 at 9:00 a.m.
This local relay will be held at the Mills
Middle School in Rancho Cordova. This is
an overnight relay-style event where
teams of people camp out around a track.
Members of each team take turns walking
around the track for the duration of the
event. Food, games, and activities provide
entertainment and fundraising opportunities. This is a family-friendly environment
for the entire community.
http://main.acsevents.org/site/TR?pg=e
ntry&fr_id=36359
2012 TREK Breast Cancer
Awareness Ride
Saturday, October 13, 2012
at 10:00 a.m.
The Bicycle Outfitter sponsors this 7th
Annual 10, 25, or 50 mile bicycle ride to
raise awareness for breast cancer prevention, screening, treatment, and to
help fund a cure. The ride starts in Los
Altos, about 40 miles from San
Francisco.
On-line registration closes Friday,
October 12th at noon.
http://www.active.com/cycling/losaltos-ca/trek-breast-cancer-awareness-ride-the-bicycle-outfitter-2012
American Cancer Society Making Strides
Sunday, October 21, 2012 at 7:00
a.m.
Making Strides is sponsored by the
American Cancer Society. This annual
event is a 5k walking loop around the
State Capital. The walk is a rolling start,
which means you can register and walk
any time between 8:00 a.m. and 9:00
a.m.; however, there is a ceremonial
start at 8:00 a.m.
http://main.acsevents.org/site/TR/Mak
ingStridesAgainstBreastCancer/MSAB
CFY13CA?pg=entry&fr_id=47299
Create Your Own Firm Team!
If there are at least five participants in
your office willing to race for the cure,
you can create and register your own
team! Each team needs a team captain
who will register the team, invite other
people to join, and help keep members
inspired and informed of the team’s
fundraising progress. Be sure to challenge competing law firms to see who
can raise the most funds and come up
with the catchiest team name!
http://www.komensacramento.org/ko
men-race-for-the-cure/teams/
Charity Navigator
If you don’t want to break a sweat, but
you would still like to participate, donations to the many non-profit organizations supporting breast cancer research
are always welcome. If you are unsure of
what an organization does, wonder if it
is reputable, or just have no idea who to
donate to, the Charity Navigator website
does the research for you.
They give each charity a star rating
based on financial accountability
and transparency.
http://www.charitynavigator.org/inde
x.cfm?bay=content.view&cpid=497
Laughs Unlimited Benefit
Sunday, October 7, 2012
Comedian Brian Diamond has rounded
up five other humorists, and they will all
donate their time to the Save Ourselves
Breast Cancer Organization (SOS) for this
benefit. The $20 cover charge will also
go to SOS, a Sacramento-based, private,
non-profit breast cancer organization
serving the greater Sacramento region.
SOS offers a variety of support services
to individuals affected directly or indirectly by breast cancer.
http://www.save-ourselves.org/
Professional Creative Events & Business Portraits
Mary Burroughs Studio
MaryBurroughsStudio.com
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[email protected]
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Group Pricing
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13
Cover Story
Judge Judy Holzer Hersher: The
SCBA’s 2012 Judge of the Year
J
ournalism’s loss was the Sacramento’s Legal
Community’s gain when Judge Judy Holzer Hersher
traded a reporter’s notebook for law school case books.
Judge Hersher grew up in a family of four daughters, all
of whom have become professionals in varying fields. In high
school Judy envisioned a career as a teacher or a journalist.
After graduating magna cum laude with a degree in
English from the State University of New York - Albany, she
married Michael Hersher. She and Michael went to Israel
Judge Judy Holzer Hersher
14
Judge Loren E. McMaster (Ret.)
Photography by Mary Burroughs
where they lived on a kibbutz for five months, and then
travelled around the Middle East and Europe. When they
returned, Michael enrolled in law school and Judy accepted
a graduate student teaching fellowship in Shakespeare at
Georgetown University, from which she ultimately received
her master’s degree in English Literature. From there, she
entered journalism, and was hired by the Bureau of
National Affairs (BNA), a nationwide legal and tax publishing house, for its labor and employment law publications.
Cover Story
From left: Martin Freeman, U.C. Davis School of Law legal research extern; Patrick Murphy, court attendant; Alicia Cruz, courtroom
clerk, Judge Judy Holzer Hersher, and Terrance Taylor, court attendant. Missing that day due to a family illness was Michelle
Madrid, Dept. 45 official court reporter.
She worked as a reporter and editor covering the White
House and Congress and later became managing editor of
one of BNA's Labor publications.
After Michael graduated from law school, the couple
decided to move west and came to Sacramento. Judy found
a position as a general assignment reporter with the
Sacramento Bee. After giving birth to older daughter Jessie
(who works in the field of urban planning and public
health), Judge Hersher enrolled in law school at U.C. Davis.
During winter break, son Ari, (who is an attorney in San
Francisco) was born. Upon graduation, she was hired as a
litigation associate at Downey Brand where she was able to
do what she loved -- preparing and trying complex civil
cases. Balancing her personal life with her professional one,
she also gave birth to younger daughter Sofi (who works for
Twitter). After Judy became a partner at Downey Brand she
took on several managerial duties for the firm.
With her record as an outstanding litigator, a large law
firm manager, and as a person who gives back to the community, she was an easy choice for Governor Gray Davis
to appoint to an open seat on the Sacramento Superior
Court in 2000.
People from all walks of life who know Judge Hersher in
different contexts nevertheless describe her using the same
terms: a tireless worker with an incredible work ethic, an
exceptionally smart person with a keen legal mind, a born
leader, a judge and citizen committed to fairness in the
administration of justice and in life, and a person who will
assist those friends and colleagues in need no matter the circumstance. Judy credits her father and summers working
on the family farm for her work ethic and both parents for
her involvement in volunteer community activities.
The criteria relied upon by the SCBA in making this
award (see sidebar next page) accurately describe how Judge
Hersher has lived her private and judicial lives, making her
a most worthy recipient of the Judge of the Year award.
Enhancing the System of Justice
Judge Hersher has held leadership positions in a number
of civic and bar organizations. She conceived of and
worked tirelessly to create the Leonard M. Friedman Bar
Association with its goal of presenting some of the best and
brightest jurists, scholars, and attorneys to speak on the
challenging legal and social interests of our time.
In 2006, she conceived of and created King Hall
“Alumni on the Bench,” which encourages judges to nurture
a diverse group of students to enter and succeed in the legal
profession. She also is responsible for her court’s participation in the King Hall Opportunity Program (KHOP), a
pipeline project which brings high school/college students
from diverse socio-economic backgrounds to see first-hand
the workings of the court and to gain knowledge through
direct interaction with judges, attorneys and court staff.
Judge Hersher has graced this publication with a series of
15
Cover Story
informative articles dealing with all aspects of trial practice.
These articles are a valuable resource to those lawyers involved
in civil litigation. Local trial lawyers agree that they are “excellent.” Nancy Sheehan notes their value by their inclusion in
her firm’s (Porter Scott) program for new lawyers.
Commitment to the Fair and
Equitable Administration of Justice
Taking various leadership roles, she has sought to ensure
that the judicial system is fair and that justice is meted out
equally to all. The awards she has received stand as a testament to her efforts.
As Steve Boutin observed, even “[w]ith all her accomplishments, Judy has retained her personal values and idealism.”
Respected for Legal Abilities
That Judge Hersher exemplifies such commitment is
demonstrated by her actions as well as the acknowledgement
of her work by Women Lawyers, who awarded her the Justice
Frances Newel Carr Achievement Award for Advancing the
Rights of Women and Children in the Law in 2003, and the
Sacramento Unity Bar, who presented her with a Community
Service Award for Distinguished Service in 2011.
She served as chair of the Temporary Judge Training
Program on Bench Conduct, Demeanor, Fairness and
Treatment of the Self-Represented from 2007-2011, and she
continues to press for the equal administration of justice in
all aspects of court operations.
The word is out on Judge Hersher: Attorneys venturing into her courtroom better come prepared, since she
will be. Her reputation among lawyers is a judge who cuts
through complex legal problems and gets quickly to the
issue at hand.
Judge Hersher’s colleagues on the bench have adopted
and utilized many of the standing orders she has crafted. In
the words of Judge Kevin Culhane, “Judge Hersher's unparalleled work ethic is complimented by her keen legal mind.
She has a commanding knowledge of the rules that govern
civil disputes and, whenever uncertainty arises, immerses
herself in the authorities to identify the governing principles. . . to insure that justice is done daily.”
As Judge John Mendez related, Judge
Hersher has always been a student of the
law and is someone who judges feel comfortable going to with a question about the
law. “You know the answer you are going
to get is going to be correct.”
The California legal community has
taken advantage of Judge Hersher’s talents
Criteria for the Judge of the Year Award:
by inviting her to teach at the California
Judicial College and requesting her contri1. Commitment to principles of the SCBA
butions to the California Judges Benchbook
Mission Statement
and CACI Jury Instructions. She has taught
2. Commitment to fair and equitable administration of the courts
evidence and trials in new judge orientation
3. Respected for legal abilities by fellow judges
(statewide) since 2005. She also has been a
and attorneys who appear before him/her
speaker at American Board of Trial
4. Known for appropriate judicial demeanor
Attorneys and Consumer Attorneys of
and lack of bias; and
5. Demonstrated service to the Sacramento
California (formerly California Civil Trial
community at large.
Lawyers Association) programs.
Past Recipients
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
16
Cecily Bond
Joseph DeCristoforo
Milton Schwartz
Rudolph Loncke
James Ford
Loren Dahl
Robert Warren
Charles Kobayashi
Wm Ridgeway
Fred Morrison
James Long
Tom Cecil
2000 John Lewis
2001 Richard Park
2002 Ronald Robie
2003 Michael Garcia
2004 Arthur Scotland
2005 Michael Virga
2006 Connie Callahan
2007 Morrison C. England Jr.
2008 Loren McMaster
2009 James Mize
2010 Kimberly Mueller
2011 David De Alba
Proper Judicial Demeanor
and Lack of Bias
Judge Hersher models professionalism,
ethics, and civility. Even under the most
stressful of circumstances, she maintains
an appropriate judicial demeanor. She
keeps control of her courtroom while
treating all parties and counsel fairly and
even-handedly. She has no bias whatsoever and does what judges are supposed to
do in every case -- try to get it right.
Since her judicial appointment, she has
been selected as a member of the Judicial
Council Advisory Committee on Access
and Fairness in the Courts, and was
Cover Story
named the Judicial Council representative to the National
Gathering for Tribal-State-Federal Court Relations in 2005.
She began an appointment to the California State-Federal
Judicial Council this summer.
As Judge Helena Gweon experienced as a prosecutor,
when unique circumstances present themselves at trial,
Judge Hersher is sensitive to the needs of trial participants
and treats everyone involved with dignity and grace.
And as Judge David Abbott related, her sole motivation
in doing her job is to make our system as fair, efficient, and
accessible as possible. She has no hidden or personal agendas. She is never satisfied with the status quo and is always
asking, “How can we make it better?”
Service to the Community at Large
Judge Hersher has been very generous with her time
and efforts to better our community, expecting nothing in
return. As an example of her selfless service, she was
named 2000 Humanitarian of the Year by the Sacramento
County Bar Association. In addition, she received the
Bayard Rustin Civil Rights Award in 1995, was chair of the
Sacramento Area Hate Crimes Task Force, a member of the
Ninth Circuit’s Committee on Gender, Race, Religious and
Ethnic Fairness, provided pro bono legal counseling for victims of hate crimes, and helped lead a crucial effort to save
Sacramento area schools that were threatened by potential
closure.
Judy, along with other judges and community leaders,
developed Sacramento’s Operation Protect and Defend program. She started by chairing the essay portion of the contest and later created the art component of the program.
Along with husband Michael, she initiated a scholarship
to be awarded through the Friedman Bar Association at the
Unity Bar Dinner for a deserving law school student who has
made exemplary contributions to his or her community.
Judge Mendez noted that Judge Hersher “has lived her
entire life serving those in need and she is a true professional in every sense of the word in her role as a superior
court judge. The world needs more Judy Hershers.”
Steve Boutin praised Judge Hersher as “a credit to the
legal profession, and most deserving of the Judge of the Year
Award.” And as Judge Rick Sueyoshi so aptly commented,
“[t]he tremendous honor of Judge of the Year is a fitting tribute to Judge Hersher’s career-long service to the bar, our
profession, and the greater Sacramento community.”
Congratulations, Judy, on jobs well done.
Judge Loren E. McMaster (Ret.) is a former Sacramento County
Superior Court Judge and contributor to the Sacramento Lawyer
who is enjoying his retirement at Sun City in Lincoln Hills.
17
Section News
The Administrative Law
Section - On the Move
By Eric Feller, Vice-Chair,
Administrative Law Section
T
he Administrative Law Section has some exciting
“special project.” The clinic, which is located at Loaves &
events planned. First up is the section’s September
Fishes and handles a homeless court, deals with a number
13th luncheon at the Blue Prynt restaurant, located at (815
of administrative law issues, such as unemployment insur11th Street in Sacramento, which will feature Sacramento
ance appeals and benefits claims, workers compensation
Superior Court Judges Timothy Frawley and Michael
claims, disability reduction cases, and SSI eligibility. Due
Kenny. They will present a primer on writs and
field questions.
On Thursday, November 8th, the luncheon
speaker will be Office of Administrative
Hearings Presiding Judge Karen Brandt, who
will speak on interim suspension orders (ISOs),
temporary suspension orders (TSOs), and temporary restraining orders (TROs).
And on Thursday, December 6th, the section
will host a holiday party at the law offices of
Nossaman LLP, 621 Capitol Mall in Sacramento,
from 5-7 p.m. The Nossaman office is being
made available through the hospitality of Tim
Aspinwall and Bob Sullivan. All are welcome,
so mark your calendars. To register for these
events, contact the Sacramento County Bar
Ron Blubaugh, attorney volunteer at
Association at [email protected], or call (916)
the Tommy Clinkenbeard Legal Clinic,
Howard Schwartz details the
564-3780, x 209.
accepts the Administrative Law Section
new CalHR consolidation
donation
on
behalf
of
the
clinic.
The quality of these upcoming events is
assured based on the section’s past events. For
example, at the June 14th meeting, the section welcomed
to budget cuts at LSNC, the clinic must now rely on vola presentation by Howard Schwartz and Paul Starkey of
unteer contributions. The section’s donation will help
the California Department of Human Resources (CalHR),
fund one part-time person to perform record-keeping and
formerly the Department of Personnel Administration
client management.
(DPA), on what the consolidation of the DPA and the State
In April, the section cosponsored a luncheon with the
Personnel Board (SPB) will mean for state employees and
Alternate Dispute Resolution Section on “Manage Your
the public. Attendees enjoyed great information and were
Online Presence to Grow Your Practice.” Presenter Jabez
able to ask questions regarding the history, current diviLeBret gave an informative talk about what law firms could
sion of duties, and future plans for the new CalHR and a
do to improve their presence on the internet.
smaller SPB.
At the December meeting, Paul Boylan gave a fascinatAt the May meeting, Administrative Law Judge Sonny
ing presentation about the California Public Records Act,
Lo from the Department of Alcoholic Beverage Control
filled with stories from the front lines about getting access
spoke on “Look Both Ways: the Intersection of Criminal
to public records.
and Administrative Law.” His remarks touched on a numThe Administrative Law Section strives to bring you the
ber of interesting issues, focusing primarily on the effects of
finest in speakers and networking opportunities. If you are
criminal charges on those who hold state professional or
interested in serving on the board of directors or otherwise
vocational licenses and logistical planning tips regarding
helping the section, please contact the section chair,
timing of disciplinary hearings.
Heather Hoganson, at [email protected].
Also at its May meeting, the section donated $1,000 to
the Tommy Clinkenbeard Legal Clinic, which is adminisEric Feller is a senior staff counsel at the Commission on State
tered by Legal Services of Northern California (LSNC) as a
Mandates and a dedicated family man.
18
Litigation - continued from page 9
reportedly engaged in an independent investigation of
plaintiff by reviewing his personnel file; but the file contained information and accusations tainted by Korenchuk,
which Buck failed to check for accuracy.
Although the case was decided under the Uniformed
Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. § 4301 et seq., the United States Supreme
Court noted that the statute is “very similar to Title VII,
which prohibits employment discrimination “because
of…race, color, religion, sex, or national origin.” It concluded that a corporate party may be responsible for its
biased supervisor’s actions under the traditional tort-law
concept of proximate cause where the supervisor performs
an act motivated by a discriminatory animus that is intended to cause an adverse employment action if that act is a
proximate cause of the ultimate adverse employment action.
What if a decision maker relies on his or her own independent investigation to support the firing or demoting of an
employee? According to Staub, “… if the employer’s investigation results in an adverse action for reasons unrelated to
the supervisor’s original biased action (…which is the
employer’s burden to establish…), then the employer will not
be liable. But the supervisor’s biased report may remain a
causal factor if the independent investigation takes it into
account without determining that the adverse action was,
apart from the supervisor’s recommendation, entirely justified.” (Staub v. Proctor Hospital, supra, 131 S.Ct. at p.1191.)6
The Supreme Court continues: “We are aware of no principle
in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive
effect. Nor do we think the independent investigation somehow relieves the employer of “fault.” The employer is at fault
because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in
fact cause, an adverse employment decision.” (Id. at p.1192.)
“Me Too” Evidence is Alive and Well
The above holdings are consistent with other cases that
address the “me too” evidence in employment cases. “Me
too” evidence generally consists of testimony by other
employees who have experienced illegal discrimination or
harassment at the hands of the same defendants. Finding
there is no wholesale reason for rejection of such evidence,
the cases allow the testimony for the same reason that “cat’s
paw” and stray remarks evidence are admissible. Specifically,
it is relevant as circumstantial evidence of discriminatory
intent or animus, the employer’s alleged knowledge of the
conduct of its supervisors, and/or defendant’s failure to conduct adequate investigations to uncover improper reports.
(See, e.g., Pantoja v. Anton (2011) 198 Cal.App.4th 87, 112;
Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of
Los Angeles and Ventura Counties (2009) 173 Cal.App.4th
740, 763-767; and Tarle v. Kaiser Foundation Health Plan, Inc.
(2012) 206 Cal.App.4th 219. These newer cases call into
question the continuing validity of Beyda v. Los Angeles (1998)
65 Cal.App.4th 511. Beyda held that acts of harassment or
discrimination against persons other than the plaintiff are
inadmissible character evidence under Cal. Evid. Code
§1101(a). The newer cases, such as Pantjoa, permit the evidence under Cal. Evid. Code §1101(b), to show motive,
intent, plan, absence of mistake or accident.
Taken together, the cat’s paw theory of liability, the admissibility of ‘me too’ evidence, and the rejection of the strict application of the stray remarks doctrine require attorneys and the
court to examine in context the totality of comments and actions
made by persons in a position to influence decision makers in
employment actions. Thus, if you can whiff singed fur or place
comments or inappropriate conduct within the relevant time
frame, absent undue prejudice, an improper foundation or valid
hearsay exception, the evidence will come in.7
1. Under the California Fair Employment and Housing Act (FEHA), protected status includes race, religion, sex, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, age, or sexual orientation. (Government
Code § 12940(a)) Under Title VII of the federal Civil Rights Act, protected status
includes race, color, religion, sex or national origin. (42 U.S. Code § 2000e-2) Age
and disability discrimination are addressed in the federal courts under the Age
Discrimination in Employment Act of 1967 and the Americans with Disabilities Act
(ADA). (29 U.S. Code § 621 et seq. and 42 U.S. Code § 12131 et seq.)
2. The relevant CACI jury instructions refer to this as a “motivating reason”
for the adverse employment action. (See, e.g., CACI 2500 et seq.)
3. See also the statement and accompanying citations that the “cat’s paw”
model, or a functional equivalent, has been adopted or referred to approvingly in all but one of the federal circuits. Reeves v. Safeway Stores, Inc. (2004)
121 Cal.App.4th 95, 114-115.
4. As Reid explains at pgs 536-537, the stray remarks doctrine arises from a
concurring opinion by former United States Supreme Court Justice O’Connor
in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 276, in which a plaintiff
sued her employer for sex discrimination. The Justice wrote that “stray
remarks”-“statements by non decision makers, or statements by decision makers unrelated to the decisional process itself”-do not constitute direct evidence
of decision makers but can be probative of discrimination. Reid also examines
federal court decisions post the 1989 case.
5. The grant also was erroneously based on a public immunity doctrine,
which was rejected as well.
6. The Court rejected the employer’s argument that its independent evaluation
and investigation should be sufficient as a hard and fast rule to negate the effect
of any prior discrimination. The Court stated: “[Defendant employer’s] view
would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse
employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be
effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That
seems to us an implausible meaning of the text, and one that is not compelled
by its words.” (Staub v. Proctor Hospital (2011) 131 S.Ct. 1186, 1193.)
7. All evidence is subject to rejection under the balancing test of Cal. Evid. Code
§ 352 (prejudicial value outweighs the probative value), lack of personal knowledge (Cal. Evid. Code §702) or inadequate foundation (Cal. Evid. Code §400
et seq.). It may also be inadmissible under Cal. Evid. Code § 1101(a) if section (b) (evidence of character inadmissible except opinion, reputations, specific instances of conduct admissible to prove motive, intent, plan, knowledge,
absence of mistake or accident) doesn’t apply.
19
Commentary
Stirrings of Legal Reform in China:
Will Juries Ever Sit in Judgment?
By Judge Brian R. Van Camp
“The problem with our system is that the prosecutor and
the judge are on the same side against the accused.”
T
his poignant remark was made by a young Chinese
man in Beijing while leaving a public, U.S. Embassyhosted viewing of the movie, Twelve Angry Men, followed by
a discussion of civil and political rights. I believe his comment is indicative of the awareness of at least China’s younger
generation and may be the harbinger of changes to come.
As I visited China this past May, signs of modernity in
China were everywhere! Striking skyscrapers punctuated
the skies over the cities; the streets were filled – not with
bicycles -- but with hordes of automobiles, including
expensive models; well-fed, taller, and mostly fit city residents now lived in the ‘zillions’ of high-rise condo towers,
Professor Taihe Chen, a law professor at Guilin University of
Electronic Technology, in Guangxi. Professor Chen is committed to attempting to install not only a jury system in
China, but indeed the whole of the Common Law. He faults
their current system as it uses no juries; the judges make all
findings of fact and then rule. “But judges in China are not
Songjiang District Court Chief Judge Zhang
Changqing and Sacramento County Superior
Court Judge Brian R. Van Camp. Songjiang
District Court is located in Shanghai, China.
Judge Brian R. Van Camp, with the aid of an interpreter, teasing Chief Judge Zhang
Changqing that by not having juries in China he was working too hard. Since Judge
Changqing had to decide both the law and the facts, Judge Van Camp hoped he was
getting paid twice as much since Judge Van Camp only had to decide the law.
not in the lowly ‘hutongs’ of old; and many of the hotels,
shops, and restaurants were, simply, luxurious.
As shown by the above quote from the young man, however, the question now appears to be whether, with all this
material well-being, will China’s government improve the
civil and political lot of its people? Based on my experiences in May, I think there is hope.
First, through the efforts of Attorney Kyle Latimer, the
U.S. Department of Justice Resident Legal Advisor (RLA) at
the U.S. Embassy in Beijing, I was able to speak with
20
Judge Brian R. Van Camp sitting on the bench
at the Songjiang District Court.
independent,” he asserted. “They have a boss!” He contends
that before a judge may rule, he must first “ask his boss—‘Is
this okay with you?’” Only after the ‘boss’ has approved with
his/her signature may the judge enter the judgment.
However, Professor Chen is hopeful. First, he believes the
[Communist] government officials are interested in juries on
condition that they believe it is a means of keeping social stability—“no one wants insurgents leading a violent revolution,
and the jury system is able to keep China from dynastic revolution, just like UK and USA.” he said. And the “rich boys,”
Commentary
the corporate hierarchy, may be interested in the jury system,
but receive travel and meal allowance. Individual Lay
because they see the present courts as corrupt. They believe
Assessors are often chosen to serve on a particular case based
they are brought to court, “not for justice, but for biased treaton their special knowledge of the subject matter involved.
ment, heavy fines and/or imprisonment. “An official in a govOnce the trial is over, and the judges and Lay Assessor
ernment without a jury system can
have ruled, the case then goes to the
be corrupt, because there’s no jury to
Standing Committee, which Judge
control him, and the jury is the best
Zhang described as ‘the most powway to eradicate corruption.”
erful’ of all the court’s bodies. It is
Professor Chen stated, adding that
comprised of 13 judges, including
“the American court system is the
the Presiding Judge, the Assistant
best, because of its jury system.”
Presiding Judge and 11 other judges
But he believes change will come
of the court. This body either
slowly, because the current system
approves the result or rejects it.
enables judges to take graft.
I tried to evangelize on behalf of
Nonetheless, the professor conjuries to Presiding Judge Zhang.
cludes, raising his voice, “We’re sup“After all,” I told him, “if you’re both
posed to be the ‘People’s Republic of
determining the facts and making
China,’ not the ‘Senior Government
legal rulings, you’re working twice
Judge Brian R. Van Camp sitting with Chief Judge
Officials’ Republic of China!’”
as hard as I am. Since I only have to
Zhang Changqing (left) in the Songjiang District
Questions by young attendees at Court’s ceremonial receiving hall, located on the
rule on the law, I hope you’re makthe movie-discussion event men- top floor of the courthouse.
ing twice the money I am!” He
tioned above were revealing:
seemed to enjoy my trying to kid
• “In our country, we have no say; how can we improve
him into a more direct democracy through the jury system,
our justice system?”
saying later by e-mail that, “I think that law is not an
• ”In U.S. courts, do the richest or most intelligent jurors
unchangeable textbook, it can be flexible. So maybe some
dominate the poorer, less sophisticated jurors?”
time later, if we find out that legal system in the U.S. is more
• “Why doesn’t the judge just decide everything and tell
advanced, indeed, we will have the Lay Assessors decide the
the jurors how to vote?”
facts as well.” I was encouraged.
• “How often can you serve? Can you just stay and serve
Last, RLA Kyle Latimer explained that, on March 14,
on another case?”
2012, the Criminal Procedure Law of the PRC was amend• “In America, are the lawyers who are appointed for
ed by the National People’s Congress, to “protect Human
indigent accused any good?”
Rights,” that, arguably, may enhance the rights of people
• “I want to take my J.D. in your country; how can I
accused of a crime. From the time Chairman Mao Zedong
improve my LSAT score?”
returned from his visit to the Soviet Union in the late ‘50’s,
Here and elsewhere during my visit, I heard the almost
China’s criminal code has resembled the Soviet model in
universally-expressed desire to travel to and study in the
that few, if any, rights are afforded to the accused. Under
United States. A local report said that 157,000 Chinese stucurrent law, the government is able to detain an individual
dents studied in the U.S. in 2010. Based on what I saw, I
for up to 37 days without judicial review or notification to
expect that number to double and triple very shortly. And
the family. Authorities may also hold a person in “residenwhether these young people have learned of our court systial surveillance at a designated location” for up to 6 months
tem from TV, movies, or their studies, they clearly underand with no duty to notify the family. (See the recent cases
stand the difference between a jury and a judge making the
of the blind dissident lawyer, Chen Guangcheng, and
critical decisions of guilt or innocence, liability or not.
deposed Chongqing leader, Bo Xi Lai.)
Travelling next to Shanghai, I had the privilege of meeting
Effective July 1, 2012, the government now must:
with Presiding Judge Zhang Changqing of the Songjiang
• Notify family members within 24 hours of detention,
District Court in Shanghai, a trial court of general jurisdiction
arrest, or placement of a person in “residential surveilof 110 judges. About 90 judges preside over “simplified” or
lance at a designated location;”
“summary” proceedings; the balance handle “ordinary,” or “reg• Advise of the right to counsel;
ular” trials. Again, no juries are used, but Chinese courts are
• Furnish counsel to a person facing a capital or life senexperimenting with the use of so-called “Lay Assessors.” These
tence;
are regular citizens, one of whom will sit with two regular
• Allow counsel to see his client; and
judges to hear an “Ordinary” case. The Lay Assessor may ask
• Provide the prosecution’s evidence to defense counsel
questions of the parties. A majority of the three ‘judges’ rules.
before, rather than at, trial.
Lay Assessors are chosen by the Local District People’s
In addition, residential surveillance at a designated locaCongress for a term of five years. They serve without pay,
Continued on page 34
21
Section & Affiliate News
Barristers’ Club Update
The 20th Annual Summer Associates Reception
By Kurt D. Hendrickson,
Barristers’ Media Chair
T
he Barristers’ Club recently hosted its 20th Annual
Summer Associates Reception to honor the summer
associates and firms participating in the Sacramento County
Bar Association’s Diversity Hiring and Retention Program.
These firms hired a first year diversity law student for the
summer. The Summer Associates Reception, held at the
Park Ultra Lounge in July, also celebrates all of our
Sacramento-area summer associates. As always, the event
had a tremendous turnout from the local legal community,
including summer associates, judges, and attorneys.
The Barristers would like to thank all the judges, both
Timmons, Owen & Owen, Inc.
UC Davis School of Law
University of the Pacific, McGeorge School of Law
THANK YOU!
The Summer Associates Reception is central to the
Barristers’ agenda. It introduces summer associates to the
local legal community that they will join and allows them
to meet the judges that will hear their clients’ cases. The
event also provides an
essential networking
From left: Judge Allen H.
Sumner, Judge Shelleyanne W.L.
Chang, Irene E. Williams and
Reina Minoya.
From left: Alexis Klein, Justice Ronald B. Robie, Sarah Gold, Judge John Mendez, Annie Kong
and Cameron Smith.
state and federal, who attended this year’s Summer
Associates Reception. Every year the Sacramento legal community makes this event better and better.
The Barristers would also like to give a special thank you
to all the local firms and law schools that sponsored the
event. This event would not be possible without your generous contributions. The following law firms and law
schools co-sponsored the Summer Associates Reception:
Boutin Jones Inc.
Downey Brand LLP
Flesher Broomand McKague LLP
Kershaw, Cutter & Ratinoff LLP
Knox, Lemmon, Anapolsky & Schrimp, LLP
Littler Mendelson, PC
Mastagni, Holstedt, Amick, Miller & Johnsen
Matheny Sears Linkert & Jaime LLP
Orrick, Herrington & Sutcliffe LLP
Porter Scott
Seyfarth Shaw LLP
Somach, Simmons & Dunn
22
opportunity for young
lawyers. The Summer
Associates Reception
is a staple of the
Barristers’ annual program and we look forward to hosting next
year’s event.
From left: Sophia Kwan; Jordy Hur,
the Judge Kevin R. Culhane and
Brent Jo.
CONTINUING EDUCATION
One June 20 the Barristers organized the Law and
Motion Seminar. Once again the Honorable David I.
Brown and the Honorable Shelleyanne W.L. Chang presented at the event. We had great attendance and plan to
organize the MCLE again next year. Thank you Judge
Brown and Judge Chang for volunteering your time to educate members of the local bar on law and motion practice in
Sacramento County Superior Court.
In the fall be on the look out for our appellate seminar,
our mediation seminar and our e-discovery seminar.
Events
Operation Protect and Defend
Hosts Annual Awards Dinner
O
peration Protect and Defend
(OPD) is an affiliate of the
Sacramento Law Foundation, which
brings together judges, lawyers, and
educators to create and implement a
unique high school civics enrichment
curriculum that emphasizes the role
of the United States Constitution in a
democratic society.
For 2011/12, the participating high
schools were: Grant Union High
School, Kennedy High School, Luther
Burbank High School, C.K. McClatchy
High School, Natomas Pacific Pathways
Prep High School, Rio Americano High
By Andrew W. Stroud
and ALJ Teri L. Block
Photographs by Tia Gemmell
School, and Sacramento High School.
The judges and lawyers taking part in
OPD attended over 80 classes at the
participating schools, speaking to hundreds of students;
U.S. District Judge Frank C.
Damrell, Jr. (Ret.) founded OPD over
a decade ago when he became concerned that civics education was no
longer being emphasized in high
schools. Several members of the local
bench and bar shared this concern
and joined Judge Damrell to form
OPD in an effort to address this issue.
OPD engages high school students in a
dialogue with judges and lawyers
about the Constitution, civil rights and
the responsibility to participate in a
democratic society. The name “Protect
and Defend” is derived from the attorneys’ oath to “protect and defend” the
Constitution of the United States as a
condition for admission to the Bar.
Using the curriculum developed
by attorney and teacher members of
the OPD Executive Committee, the
volunteer judges and lawyers do not
just visit high school classrooms, they
actually teach lessons -- engaging students in a dialogue about constitu-
Former Supreme Court Associate Justice Cruz Reynoso (center) with all the Operation Protect and Defend student essay and art contest winners
24
Events
tional rights and the law. This year,
students were challenged to explore
the Equal Protection Clause as it
relates to undocumented immigrants
– a thought-provoking topic that generated robust student discussion from
a broad cross-section of perspectives.
The curriculum is designed to
encourage students to think critically
about the role of government and to
generate an understanding of the
importance and relevance of our constitutional history.
To assist the judges and lawyers
who volunteer one or more times
each year during the month of
February, OPD sponsors an annual
MCLE luncheon featuring constitutional law experts relative to that
year’s topic. This year’s speaker
was - of the University of California,
Davis, King Hall School of Law,
who spoke on the topic of “State
O
peration Protect and Defend (OPD) and the Sacramento County
Bar Association marked the annual Law Day dinner with a celebratory awards banquet on May 1st. This year’s event was also sponsored
by the Asian Bar Foundation. The venue was the Sheraton Grand Hotel
where former California Supreme Court Associate Justice Cruz Reynoso
was the featured speaker.
Justice Reynoso’s comments focused on the thematic curriculum for
the 2012 program, “Perspectives on Immigration & Education.” This
provided a rich opportunity for the injection of his unique perspective as
the son of a farm worker and first Latino justice of the California Supreme
Court. In addition to this distinguished keynote speaker, other highlights
included the introduction of this year’s Story of America and Modern
Masters of America high school student essay and artwork winners. The
winners were introduced by Sacramento County Superior Court Judges
Larry Brown and Judy Holzer Hersher.
This year, 23 local high school students were honored for their outstanding essay and artwork. This year’s art pieces were extraordinary
and sophisticated, running the gamut from collage, to a controversial
political cartoon, to mixed media, to interpretative dance. The essay and
artwork contest winners were presented with cash prizes ranging from
$200 to $1,000.
Here are the 2012 award-winning student achievers:
Story of America Winners
Justice Robert K Puglia Most Original &
Inspirational Essay Awards ($1,000)
Marcos Rosales – Natomas Pacific Pathways
Prep High School
Alana Gerasimchuk – Grant Union High School
Grant Oshita – John F. Kennedy High School
Zarra Nadeem – Natomas Pacific Pathways
Prep High School
Frank C. Damrell, Jr. Lawyers’ Choice
Award ($1,000)
Nicole Mah – John F. Kennedy High School
Dylan Dickstein – Rio Americano High School
Bion M. Gregory Essay Recognition Awards ($250)
Rachael Wright – Natomas Pacific Pathways
Prep High School
Macelino Nambo – C.K. McClatchy High School
Celena Tellez – Natomas Pacific Pathways
Prep High School
Nowel Ojeda – Luther Burbank High School
Teachers’ Choice Awards ($200)
Sebastian Mercado-Rondan – C.K. McClatchy
High School
Shauna Milesi – Rio Americano High School
Jasmin Beck-Davis – Natomas Pacific Pathways
Prep High School
Jean Liu – John F. Kennedy High School
Samantha Jibok – Luther Burbank High School
Janera Montano – Sacramento High School
Alex Mendez – Grant Union High School
Modern Masters of America Art Winners
$ 1,000 Winner:
Vanessa Andrea Requejo – Sacramento High School,
“We Are the People Who Hide In the Dark”
$ 500 Winner:
Alicia McDaniel – C.K. McClatchy High School
“Comic Strip”
$ 250 Winners:
Olivia Arstein-Kerslake – Rio Americano High School
“One of Us”
John Vang – Luther Burbank High School
“Come Away to the Water”
Honorable Mentions:
Naomi Bingham-Walker – Natomas Pacific Pathways
Prep High School
“Killing Them Softly”
Darius Graham – Sacramento High School
“[photograph of little girl]”
25
Events
Immigration Enforcement Laws and
United States v. Arizona.”
After the classroom dialogue, students are encouraged to write an essay
or create a work of art based upon the
chosen topic. Students may submit
their essay or artwork for consideration in the Story of America or
Modern Masters of America essay and
art competitions. Contest winners
receive scholarship money.
Artwork in this year’s Modern
Masters of America contest were displayed at the Solomon Dubnick
Gallery, where they were shown and
judged. There was also a reception
featuring artist-attorney David Post,
who offered words of encouragement
and advice to Sacramento’s emerging
young artists.
The Story of America and Modern
Masters of America contest winners
received their scholarship awards at
OPD’s annual Law Day Awards Dinner,
held in May at the Sheraton Grand
Hotel in Downtown Sacramento. The
theme of this year’s dinner was
“Perspectives on Immigration &
Education.” The dinner featured former California Supreme Court
Associate Justice Cruz Reynoso. The
dinner was attended by numerous
members of the state and federal
bench and bar, as well as local educa-
Back row from left: Judge Larry Brown, Operation Protect & Defend Chair Andrew
Stroud, Jim Damrell, Justice Vance Raye, Natomas Pacific Pathways Prep High
School student Marco Rosales, and Marco Rosales Sr.; Front row from left: Judge
Kimberly Mueller, Lauri Damrell, Natomas Pacific Pathways Prep High School
teacher Melissa Mori, and Zulema Rosales.
tors, students and their families.
For more information or if you are
interested in participating in OPD,
where you will get to work alongside
some of Sacramento’s premier judges,
lawyers, and educators, contact
OPD Chair Teri L. Block at tblock@
spb.ca.gov or OPD Immediate Past
Chair Andrew W. Stroud at 916 5512590 or [email protected] .
Andrew W. Stroud is a partner at
Mennemeier, Glassman & Stroud in
Sacramento and specializes in intellectual property claims. Teri L. Block is
an administrative law judge with the
California State Personnel Board.
Operation Protect & Defend members
ALJ Teri Block and Alf Brandt
From left: Associate
Justice Elena Duarte,
Operation Protect &
Defend member
Angela Lai, and
Associate Justice
Louis Mauro
From left: Justice Cruz
Reynoso, Lauri Damrell,
and Judge Frank C.
Damrell, Jr., Ret.
26
Art-One-of-Us
One of the Masters of America artwork winners,
Rio Americano High School student Olivia ArsteinKerslake, with her entry “One of Us.”
SCBA News
SCBA Hires New Executive Director
T
he Sacramento County Bar Associa“I’m delighted to have the opportunity
tion last month announced the hirto help the Sacramento County Bar
ing of D. Larkin Chenault as the
Association at this exciting time in its hisAssociation’s new executive director.
tory,” Chenault said. “I hope all members of
Chenault, 66, takes over for Carol Prosser,
our bench and bar will join us in this periwho will retire September 30th after servod of tremendous growth that we are about
ing as executive director for 11 years.
to experience in service to our members,
Chenault, who was selected after a
our justice system and our community. It
nationwide search, last served as the execuwill be great fun!”
tive director of the 8,700-member
SCBA President June Coleman was
Connecticut Bar Association. In addition to
grateful for the many years of faithful servthe Connecticut Bar, Chenault also served
ice provided to the association by Prosser,
D. Larkin Chenault
as executive director of the Cleveland
while enthusiastic about the prospects for
Metropolitan Bar Association, the State Bar
the future.
of Michigan and the Cincinnati Bar Association. He holds
“Carol has a long history with the SCBA and we will miss
a Bachelor of Art’s degree from Kentucky’s Transylvania
her when she retires,” Coleman said. “But the SCBA enters
University – founded in 1780 and consistently ranked one
an exciting new chapter with Larkin at the…helm. He
of the top liberal arts colleges in the country -- and a law
brings a wealth of experience and ideas to the association. I
degree from the University of Louisville School of Law.
know the Sacramento legal community will extend a warm
“Bringing Larkin on board is a huge opportunity for the
welcome to him.”
SCBA,” said SCBA 1st Vice President Bruce Timm. “He
comes to us with 24 years of experience leading local and
state-wide bar associations. Together with our dedicated
and hard-working board of directors, Larkin will help
guide our association to an entirely new level.”
Chenault doesn’t officially take over as executive director until October 1st, but will be attending selected meetings and events throughout the month of September.
3620 American River Drive
Suite 260
Sacramento, CA 95864
(916) 974-8600
Business, Commercial,
Construction Claims and
Defects, Employment,
Insurance, Intellectual
Property, Malpractice,
Probate, Product Liability
For more information visit
www.sacbar.org
and Real Estate Disputes.
Calendar and further
information online at:
www.malovoslaw.com.
27
Section & Affiliate News
Sacramento’s St. Thomas
More Society Update
By Heather Hoganson and Paul Starkey
T
he Saint Thomas More Society of Sacramento
(STMS) for over 25 years has served as a source of
fellowship for local Catholic attorneys and a forum for interfaith understanding. Open to all, STMS offers a variety of
events at an array of venues and times throughout the year.
STMS meets on second Wednesdays during the academ-
Ron Blubaugh, recipient of the Fr. McDermott Integrity Award.
Photo Courtesy of Pacific-McGeorge School of Law
ic year, either for breakfast or lunch. The gatherings typically include Mass, prayer service, or MCLE presentation.
Local priests celebrate Mass with the group and then discuss items of interest, such as the revised liturgical format,
the writings or lives of particular saints, or the process of
annulments. STMS thanks Father Art Wehr, Father Jerry
McCourt (recently deceased), Bishop Jaime Soto, Father
Mark Richards, and Father Jeremy Leatherby for joining
us for our September, November, February, March, and May
gatherings, respectively.
28
In January, STMS co-sponsored the second annual
Ethics & Civility luncheon with La Raza Lawyers of
Sacramento, featuring Associate Justice Elena J. Duarte of
the Third District Court of Appeal and Professor Fred
Galves of UOP-McGeorge. Their lively back-and-forth discussion comparing ethics in theory and in practice was both
stimulating and provocative.
For the past seven years, STMS has
co-sponsored an annual ethics luncheon with the J. Reuben Clark Law
Society (JRCLS) and the Brigham
Young University Management Society
(BYUMS), which is always convivial
and informative. In April, Judge
Jeffrey S. Penney of Placer County’s
Superior Court explored the practical
requirements of judicial canons and
with good humor described the ethical
conundrums that judges themselves
face, such as requests for recommendations from family or friends, getting
stopped for speeding, and, on a more
serious note, controlling courtroom
outbursts.
On June 22, the feast day of the
society’s namesake, STMS hosted its
annual reception and year-end celebration. At this gathering, guest
speaker Sacramento Superior Court
Judge James Mize offered attending
attorneys, judges, and clergy a
poignant and powerful personal
reflection about the legacy of St. Thomas More on the law
and the legal profession.
At the year-end celebration, STMS presented its Fr.
McDermott Award for Integrity to Sacramento attorney
Ronald Blubaugh in recognition of his career of public
service and, most recently, his advocacy and legal service on
behalf of the poor.
Admitted to the bar in 1975 and now retired from state
service, Ronald Blubaugh had a distinguished career serving
as an administrative law judge for the California Public
$20,000 before December 31, 2012. The
money raised will ensure the continued
operation of the Clinic for the next two
years.
The Fr. McDermott Award for Integrity
is named after the late Rev. Charles
Sylvester McDermott, former vicar for theological and canonical affairs for the
Diocese of Sacramento, and a founding
member of STMS. Father Sylvester served
as the group’s unofficial chaplain and advisor for many years. The first award was
given in 2011 to Bishop Emeritus
Francis A. Quinn, under whose auspices
the Society was revived and encouraged.
Upcoming STMS meetings
include:
• Mass and breakfast with Father Bernie
Bush, S.J., of the Jesuit “El Retiro Retreat
Center” in Los Altos on September 12,
where we will hear about the ministry of
El Retiro and the spiritual exercises of St. Ignatius as
well as some thoughts about Vatican II on the 50th
anniversary of the start of the council;
• Prayer service and lunch on November 14 with
Monsignor James Murphy, vicar general of the
Diocese of Sacramento, which will include a discussion
on the early 20th century persecution of the church in
Mexico; and
• Mass and lunch on December 12 with Father Michael
Kiernan, rector of the cathedral of the Blessed
Sacrament and executive director of Catholic Charities
of Sacramento.
From left: Msgr. T. Brendan O'Sullivan, Fr. Pius Amah, Fr. Mark Richards, Fr. Vincent
Juan, STMS Board Member Angela Lai, and Judge Jim Mize celebrate the Feast Day
of St. Thomas More.”
Employment Relations Board, eventually retiring as the
chief administrative law judge. Mr. Blubaugh also served
for many years as an instructor in labor relations with the
U.C. Davis Extension Program in Sacramento. Before his
legal career, Mr. Blubaugh was a journalist with The
Sacramento Bee. He is a graduate of the University of Notre
Dame and has a masters in journalism from Northwestern
University. He obtained is law degree from the University
of the Pacific, McGeorge School of Law.
For years, Blubaugh has quietly engaged in behind-thescenes pro bono efforts to help the poor through Loaves &
Fishes. He has provided legal counsel to homeless clients,
assisted with federal court litigation to protect due process
rights of those living on the river, and, most recently, has
spearheaded the effort to continue funding for the Tommy
Clinkenbeard Legal Clinic, which began as a project of
Loaves and Fishes in 2000.
Now under the umbrella of Legal Services of Northern
California, but still operating out of Loaves & Fishes, the
Tommy Clinkenbeard Legal Clinic continues to afford
homeless people and others in need the opportunity to go
to “homeless court” and clear their warrants and perform
community service in lieu of the fines they have no money
to pay. Since 2000, the Legal Clinic has assisted the
Sacramento County Public Defender’s Office in operating
the homeless court and providing other legal survival services to the indigent poor.
With fundraising through Mercy Foundation, and with
a recent $1,000 donation from the Administrative Law
Section of the Sacramento County Bar Association, the
Legal Clinic is now over halfway to its goal of raising
Also mark your calendars for the annual Red Mass for
the Diocese of Sacramento, at 5p-m on October 3.
Current board members of STMS include President
Plauché Villeré, Co-Vice Chairs Bruce Timm and
Michael Terhorst, Treasurer Victoria Cline, SCBA
Liaison Herb Bolz, Acting Recording Secretary Heather
Cline Hoganson, and Directors-at-Large Angela Lai
and Tom Frame.
For questions or information about STMS, please email
[email protected] or call Herb Bolz at (530)
848-7252. To learn more about the Tommy Clinkenbeard
Legal Clinic, view the website at http://tclc.lsnc.net.
Heather Hoganson, a staff editor of this fine publication, is a
board member of STMS and an attorney at the Department of
Alcoholic Beverage Control. Paul Starkey, a founding member of
STMS, is an assistant chief counsel with the California
Department of Human Resources.
29
Community Service
Attorneys: Your Community Needs You! A Call
to Arms to Provide Pro Bono Legal Services
D
id you know attorneys have
an ethical and professional
obligation to provide pro bono work on
behalf of the poor who would otherwise have no access to the legal system?
We, as attorneys, are well-educated, articulate, possess specialized
know- how, and are members of an
honorable profession with a proud
history of pro bono legal services.
According to former Chief Justice
Ronald M. George, “[p]roviding pro
bono service is an important responsibility and obligation that attaches
to the privilege of being an attorney.”
Both the State Bar of California and
the American Bar Association formally
recognize the significance of donating
free legal services to the community. The
California State Bar has a pro bono resolution that acknowledges that there is a
growing need for pro bono legal services
and that “lawyers should ensure that all
members of the public have equal
redress to the courts for resolution of
their disputes and access to lawyers
when legal services are necessary.”
Accordingly, California Business
and Professions Code §6068(h) lists
the following as one of the duties of an
attorney: “[n]ever to reject, for any
consideration personal to himself or
herself, the cause of the defenseless or
the oppressed.” The State Bar Board of
Governors urges attorneys to devote
at least 50 hours per year to pro bono
representation, and urges all law firms
and public and government employers to support pro bono representation
undertaken by their employees. The
American Bar Association’s Model
Rules urges a similar voluntary commitment. Often times, you can see
the legal profession’s core value
30
By Dianna Cordova, a VLSP Advisory Committee
member and an Intel corporate attorney
reflected in the inscriptions on our
court buildings. A great example is
the inscription on the United States
Supreme Court, which reads: "Equal
Justice Under Law."
The State Bar defines pro bono (short
for "pro bono publico,” which means for
the good of the public), as the direct
delivery of legal services, without
expectation of compensation other than
reimbursement of expenses, to indigent
individuals, or to not-for-profit organizations with a primary purpose of
either providing legal services to the
poor or improving the law or access to
justice.
Who Needs Help?
More than 6.7 million low-income
Californians qualify for legal assistance,
representing 1 out of every 5 children
in the state. This number is on the rise
as a result of the economic downturn.
Nearly one-third of these families are
working families, and one-fifth of them
are of limited English proficiency, making it difficult for them to navigate the
court system on their own.
Due to recent cutbacks, our
Sacramento Superior Court’s Self-Help
Center is severely understaffed and
underfunded, impacting those who
actually need this much-needed assistance. There is also an increase in vulnerable low-income families and seniors
attempting to handle their own serious
legal matters and these individuals need
a lawyer who can provide them with
more than self-help assistance.
How Your Pro Bono
Services Help Our
Community
By doing pro bono work you are
helping the vulnerable, and at the
same time you are improving the
administration of justice.
When a pro bono lawyer helps create
a guardianship for a child, it helps protect that child without the need for the
child to have to go through the dependency system, thus easing the burden on
both the courts and the county.
When a pro bono lawyer helps keep
a family in their home, it prevents them
from becoming homeless and from creating an additional demand on shelters
and other charitable and municipal
services.
When a pro bono lawyer helps prevent workers from wrongfully losing
their jobs or from being denied wages
earned, it allows for individuals to put
food on their tables and pay their rent
or mortgage.
VLSP’s Limited
Capacity for Legal Aid
Voluntary Legal Services Program
of Northern California (VLSP) lacks
sufficient experienced attorneys in the
area of family law, probate and conservatorship of the person. As a result,
VLSP currently must turn away most
eligible clients who need assistance in
these areas.
With the cutbacks at the
Sacramento Superior Court’s Family
Law Facilitator’s Office, VLSP is experiencing a noticeable increase in calls.
The concern is the calls will continue to
increase thus increasing the number of
eligible clients who will be turned away
for lack of available lawyers to provide
legal assistance.
In California, there are approximately 800 legal aid attorneys out of a
total of more than 164,000 active attor-
neys. That makes a ratio of over 8,300
eligible indigent clients per legal aid
attorney.
In 2004, more than 4.3 million
court users in California were self-represented.
VLSP Pro Bono
Opportunities
VLSP is a volunteer-based legal
aid organization that is jointly
sponsored by the Sacramento
County Bar Association and Legal
Services of Northern California.
VLSP handles a variety of legal
problems that include debt collection defense, Chapter 7 bankruptcy,
contract disputes, car repossession,
unfair sales practice issues, identity
theft, credit report issues, claims of
exemption
and
garnishment,
wrongful termination, wage claims,
unemployment insurance cases,
criminal records expungement, driver’s license reinstatement, sealing
of juvenile records, estate planning,
probate, guardianships, and conservatorships. VLSP also represents
litigants in the mediation of unlawful detainer disputes. VLSP offers
the following free “pro per” clinics:
the Employment Law Clinic, the
Debt Collection Defense and
Bankruptcy Clinic, the Criminal
Records Expungement Clinic, the
Driver’s License Reinstatement
Clinic, and the Juvenile Records
Sealing Clinic.
VLSP makes it easy for you to volunteer by offering MCLE training classes, providing you with people in need
who have already been interviewed to
determine their legal issues, and helping
you with the necessary follow-up to
ensure quality legal services for that
client. If you would like to find out
more about volunteering at VLSP, please
go to our website at www.vlsp.org, or
contact us at (916) 551-2116. See us
also on Facebook.
For more information visit:
www.sacbar.org
31
32
33
China - continued from page 21
tion may only be used in cases involving national security, terrorism, or
“serious bribery.” Further, in such
cases, counsel must obtain the government’s permission before meeting with
detained clients.
A new exclusionary rule has been
codified, prohibiting the admission of
confessions obtained by torture. All
other illegally-obtained evidence will
be prohibited only at the discretion of
the judge. Further, the Supreme
Court, which incidentally consists of
800 justices, will review all death
penalty cases, sitting in three-judge
panels.
All of these exchanges and
encounters left your scrivener with
mixed feelings. Clearly, the government has trampled on human rights
for decades, if not centuries. But one
cannot ignore the stirrings from people who a) are no longer impoverished (mostly), b) are learning about
different legal systems and rights
through the media, including social
media, or studies abroad, c) have more
property rights to protect, and d) have
a heightened appreciation of the basic
civil liberties recognized by other systems over the last 400 years. Further,
their government leaders have to
address the latent threat posed by its
800 million citizens who are not sharing in the fruits of their burgeoning
economy, so are engaging in a multitude of demonstrations in the
provinces and elsewhere.
Waiting for the subway after the
movie and discussion at the Embassy’s
event, I said to the wife of our host
how disheartening it had been to have
just heard the young man bemoan the
government’s stacked deck, in terms of
any long-term hope for a reformed
legal system in China. “Yes,” she
responded, “but in 1988, did you realistically believe that the Berlin would
ever fall in our lifetimes?” “Hmm,” I
said. “That does put a different light
on it.”
Having returned and considered
everything from our visit, I’m hopeful.
In fact, if I were a betting man, I’d predict free elections in China within 25
years--or sooner, if the good Professor
Chen’s efforts to institute juries in
China bear fruit!
Judge Brian R. Van Camp sits on the
Superior Court of California, County
of Sacramento, where he also serves as
chair of its Jury Committee.
For more information visit
www.sacbar.org
34
SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE
1329 Howe Ave., #100 • Sacramento, CA 95825
The Sacramento County Bar Association
Invites You to Our Annual Bench-Bar Reception
Tuesday, October 30, 2012 • 5:30 - 7:30pm
California Automobile Museum
2200 Front Street, Sacramento, CA 95818
Honoring Judy Holzer Hersher as Judge of the Year
Appetizers • Hosted Bar • Jazz Combo
Tickets: $30 for SCBA members, $50 for non-members, $20 for law students
After October 23rd, all ticket prices increase by $5
RSVP to [email protected] or call 564-3780 x 200
PROUDLY SPONSORED BY
PLATINUM
• Radoslovich | Krogh, PC •
GOLD
• Boutin Jones Inc • DLA Piper LLP (US) • Greenberg Traurig, LLP • Hansen, Kohls, Jones, Sommer & Jacob, LLP •
• Kronick Moskovitz Tiedemann & Girard • Locke Lord LLP • Mastagni, Holstedt, Amick, Miller & Johnsen •
• Murphy Austin Adams Schoenfeld LLP • PORTER SCOTT • Women Lawyers of Sacramento (WLS) •
S I LV E R
• Angelo, Kilday & Kilduff • Capitol Digital Document Solutions • Leonard M. Friedman Bar Association •
• Littler Mendelson, P.C. • Mennemeier Glassman & Stroud • Renne Sloan Holtzman Sakai LLP •
• Stoel Rives LLP • Wagner Kirkman Blaine Klomparens & Youmans LLP •
BRONZE
• Asian/Pacific Bar Association of Sacramento • Hellenic Law Association of Sacramento (HELLAS) •
• La Raza Lawyers Association of Sacramento •
• Officers and Directors of the St. Thomas More Society • Wiley Manuel Bar Association •

W - Sacramento County Bar Association

Transcription

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