Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association

Santa Barbara
Official Publication of the Santa Barbara County Bar Association
December 2011 • Issue 471
Lawyer
Southern California Institute of Law
Judge Kenneth Starr
US Solicitor General
2007
Anthony Capozzi
State Bar President
Member, Judicial
Performance
Commission
2004
Celebrating 25 Years of Legal Education
in Santa Barbara & Ventura Counties
Thanks To Our Commencement Speakers
For Encouraging The Finest Traditions
of the Legal Profession
Hon. Bill Lockyer
CA Attorney General
2003
Justice Paul Turner
Presiding Justice
CA Court of Appeal
Los Angeles
1996
Justice Ming Chin
CA Supreme Court
2006
Justice Norman L. Epstein
Presiding Justice
CA Court of Appeal
Los Angeles
2010
Hon. Tani Cantil-Sakauye
Chief Justice
CA Supreme Court
2011
Prince Zeid Ra'ad Al-Hussein
President, Governing Body
United Nations International Criminal Court
2008
2
Santa Barbara Lawyer
www.lawdegree.com
Justice Arthur Gilbert
Presiding Justice
CA Court of
Appeal-Ventura
2001
December 2011
3
Santa Barbara County Bar Association
www.sblaw.org
A Publication of the Santa Barbara
County Bar Association
2011 Officers and Directors
Mack Staton
President
Mullen & Hanzell LLP
112 East Victoria Street
Santa Barbara, CA 93101
T: 966-1501; F: 966-9204
[email protected]
Catherine Swysen
President Elect
Sanger & Swysen
125 De La Guerra Street, Ste. 102
Santa Barbara, CA 93101
T: 962-4887; F: 963-7311
[email protected]
Donna Lewis
Secretary
Attorney at Law
789 North Ontare Road
Santa Barbara, CA 93105
T: 682-4090; F: 682-4290
[email protected]
Scott Campbell
Chief Financial Officer
Rogers, Sheffield & Campbell, LLP
427 East Carrillo Street
Santa Barbara, CA 93121-2257
T: 963-9721; F: 966-3715
[email protected]
Lynn Goebel
Past President
Special Projects
Attorney At Law
148 East Carrillo Street, Ste. A
Santa Barbara, CA 93101
T: 879-7513; F: 879-4006
[email protected]
Matthew Clarke
Santa Barbara Lawyer
Christman, Kelley & Clarke
831 State Street
Santa Barbara, CA 93101
T: 884-9922; F: 866-611-9852
[email protected]
William Duval
Events Committee
Bench & Bar Relations
Attorney At Law
1114 State Street, Ste. 240
Santa Barbara, CA 93101
T: 963-9641; F: 963-4071
Rebecca Eggeman
Events Committee
Attorney at Law
315 Meigs Road, Ste. A-378
Santa Barbara, CA 93109
T: 626-0026; F: 626-0027
[email protected]
Herb Fox
Bench & Bar Relations
Law Office of Herb Fox
15 W. Carrillo Street, Ste. 211
Santa Barbara, CA 93101
T: 899-4777; F: 899-2121
[email protected]
Jennifer Hanrahan
Bench & Bar
Attorney At Law
657 Del Parque Drive, Ste. E
Santa Barbara, CA 93103
T: 966-6441; F: 966-6407
[email protected]
Preston Marx
MCLE
Law Office of Preston A Marx, III
4299 Carpinteria Ave, Ste. 100
Carpinteria, CA 93013
T: 566-9500; F: 684-3975
[email protected]
Casey Nelson
MCLE
Special Projects
27 W Anapamu Street, #161
Santa Barbara, CA 93101
T: 637-3492
[email protected]
Santa Barbara Lawyer
Brandi Redman
Bench & Bar
Awards & Board Development
Attorney & Counselor at Law
1021 Laguna Street, Apt. 8
Santa Barbara, CA 93101
T: 252-8418
[email protected]
Angela Roach
Liaison
Awards & Board Development
Employee & Labor Relations
University of California
Santa Barbara
3101 SAASB
Santa Barbara, CA 93106-8645
(805) 893-7302 telephone
[email protected]
Kelly Scott
MCLE
Santa Barbara Lawyer
County Counsel Of Santa
Barbara
105 E Anapamu Street, Rm 201
Santa Barbara, CA 93101
T: 568-2950; F: 568-2982
[email protected]
Carl straub, jr.
Vice President & General
Counsel
Flir Commercial Systems
70 Castilian Dr.
Goleta, CA 93117
T: 690-7190
[email protected]
©2011 Santa Barbara County Bar Association
CONTRIBUTING WRITERS
Christine Chambers
Laura Dewey
Dibby Allan Green
David C. Peterson
Angela D. Roach
Kelly D. Scott
Robert Sanger
EDITOR
Matt Clarke
ASSISTANT EDITORS
Lida Sideris
Kelly Scott
MOTIONS EDITOR
Michael Pasternak
VERDICTS & DECISIONS
EDITOR
Lindsay G. Shinn
PRINT PRODUCTION
Wilson Printing
DESIGN
Baushke Graphic Arts
Lida Sideris
Executive Director
15 W. Carrillo Street, Ste. 106
Santa Barbara, CA 93101
T: 569-5511; F: 569-2888
[email protected]
Mission Statement
Santa Barbara County Bar Association
The mission of the Santa Barbara County Bar Association is to preserve the integrity of the
legal profession and respect for the law, to advance the professional growth and education
of its members, to encourage civility and collegiality among its members, to promote equal
access to justice and protect the independence of the legal profession and the judiciary.
4
Santa Barbara Lawyer
Submit all EDITORIAL matter to
[email protected]
with “submissIon” in the email
subject line.
Submit all MOTIONS matter to
Michael Pasternak at
[email protected]
Submit all advertising to
SBCBA, 15 W. Carrillo Street,
Suite 106, Santa Barbara, CA 93101
phone 569-5511, fax 569-2888
Classifieds can be emailed to:
[email protected]
Santa Barbara
Official Publication of the Santa Barbara County Bar Association
December 2011 • Issue 471
Lawyer
Articles
Sections
7 What It Means to Be a Lawyer, By David C. Peterson
24 Motions
8 2012 Changes to Property Tax Reporting Requirements for Real Property, By Dibby Allan Green
26 Verdicts & Decisions
10 ICC Prosecutor Opens Investigation into Ivory Coast
30 Calendar
Election Violence, By Christine Chambers
12 Restorative Court Creates Permanent Change, By
Angela D. Roach
14 The Supreme Court Denies Compensation To Victim
Of Admitted Prosecutorial Misconduct: A Review of
Connick v. Thompson, By Kelly D. Scott
28 Classifieds
About the Cover
Photo by Bill Donovan and Petra Cortright, who is an Internet artist currently living and working in Santa Barbara,
California. www.petracortright.com.
16 California Women Lawyers’ Annual Dinner 2011, By
Laura Dewey
20 Secrecy, Presumption of Government Records
Regularity, and the End of Law as We Know It, By
Robert Sanger
Katherine Hause, Danielle DeSmeth, Hon. George Eskin, Hannah-Beth Jackson at the California Women Lawyers’ Annual Dinner. See story page 16.
December 2011
5
McIvers&Slater_7.5x4.5_2011
5/4/11
3:52 PM
Page 2
McIvers & Slater
Mediation and Arbitration
Kevin Thomas McIvers
[email protected]
Hon. James M. Slater
Judge of the Superior Court, Ret.
[email protected]
Excellence in Dispute Resolution
Business Disputes
Real Estate
Elder Abuse
Professional Liability
Medical Malpractice
Insurance & Bad Faith
Employment & Wrongful Termination
Construction Contract & Defect
Personal Injury & Wrongful Death
(805) 897-3843
www.McIversandSlater.com


Not in a position to
provide service?
Conflict of interest?
Out of your practice area?






        
        

Send the client to

Lawyer
Referral
Service
• 
• 
• 


 •

• 
 • 
 
• 
 • 

• 
 • 


 • 
• 

• 

• 
• 

 • 
805.569.9400
Santa Barbara County’s ONLY
State Bar Certified
Lawyer Referral Service
A Public Service of the
Santa Barbara
County Bar Association
6
Santa Barbara Lawyer
Legal News
What It Means to
Be a Lawyer
By David C. Peterson
C
elebrate being a lawyer. Lawyers are part of the
most important aspects of society. The Constitution would be powerless without lawyers. Order is
maintained and chaos avoided by the laws of society. But
the laws without lawyers can do nothing. Lawyers bring
laws to life. They are also the force behind removing laws
that violate the Constitution. Lawyers help refine the law
through cases they pursue on behalf of their clients. The
public relies on them to protect their rights, whether in
civil or criminal courts. Giant companies and individuals
who do wrong are brought to “justice” through lawyers.
Criminals and other wrongdoers would reign and control,
especially those with great resources, if lawyers were not
there to bring them before the court and have them face
their “peers.”
Our justice system is alive because of lawyers. Lawyers
have the power to do good. They also are in positions to
do harm. When this occurs, the State Bar Association and
lawyers take action to protect the clients. Bad lawyers
are brought to justice through actions of lawyers and the
justice system.
In a speech given by former Chief Justice Ronald George
at U.C. Berkeley in June of this year, he epitomized what
it is to be a part of the justice system. He described being a
son of poor immigrants who engendered in him a sense of
service. He saw his law school experience, first at Princeton
and then at Stanford, as preparation to be of service. He
selected the law as he perceived this as the best path to
his goal. At a young age, his dedication to being of service
led to an appointment to the bench and eventually to the
Supreme Court. He exemplified the practice of law and
the carrying out of justice. He said there were times during which he had to make difficult choices and though he
struggled, he knew he had to do what was right to serve
society and the rule of law.
Abraham Lincoln is famous for several reasons, but
primarily for his passion for the law and justice. He also
epitomized what one should be as a lawyer. Examining his
history before becoming president, nothing he did would
December 2011
have aroused others to criticize him in the manner that lawyers are criticized today. He would not have been accused
of contributing to the perception that we are a “litigious
society.” He was certainly no weakling when it came to taking on the most difficult challenges and meeting them head
on with the incredible power of truth, integrity, and serving
justice. On the one hand he said: “Discourage litigation.
Persuade your neighbors to compromise whenever you can.
As a peacemaker, the lawyer has a superior opportunity
of being a good man. There will still be business enough.”
On the other hand, he took on some of the most powerful
and dangerous segments of society in order to protect the
rights of the weakest, knowing that justice for them had to
come in order to preserve the Constitution and rights of all
members of society. In this regard, Lincoln said:
“This is essentially a People’s contest. On the side of the
Union, it is a struggle for maintaining in the world, that
form, and substance of government, whose leading object
is, to elevate the condition of men—to lift artificial weights
from all shoulders—to clear the paths of laudable pursuit
for all—to afford all, an unfettered start, and a fair chance,
in the race of life.” (July 4, 1861, Message to Congress.)
The Civil Rights laws passed under President Johnson
were enforced by courageous lawyers who did and continue
to do so, as Lincoln, for the same purposes.
The public needs lawyers for nearly all important aspects
of life, from drafting wills and trusts, helping parties with
property matters, protecting interests in transactions, pursuing legal rights and remedies, adoptions, navigating the
family law arena and so on. The list is endless. Whether
encouraging and assisting clients to settle, pursuing or defending their rights, or protecting their interests in several
ways, lawyers are being of service. So, we should celebrate
that we serve such an important role in society.
David C. Peterson is a local mediator. For comments or information, he may be reached at (805) 441-5884 or [email protected]
charter.net
Edward Jones ranked “Highest in
Investor Satisfaction with Full Service
Brokerage Firms, Two Years in a Row”
Visit jdpower.com
Daniel J De Meyer
Financial Advisor
.
125 E De La Guerra St Ste 101
Santa Barbara, CA 93101
805-564-0011
7
www.edwardjones.com
Member SIPC
Legal News
2012 Changes to
Property Tax Reporting
Requirements for Real
Property
By Dibby Allan Green
L
ast month’s article, “2012 Changes to Property Tax
Reporting Requirements for Legal Entities,” examined transfer of ownership interests in legal entities
in light of the modifications to the reporting and penalty
scheme made by SB 507, now chaptered and effective
January 1, 2012. This article will summarize the reporting
requirements and penalties, as they relate to transfers of
interests in real property, as modified by SB 507.
Reporting Requirements
The reporting requirements apply to transfers of interests
in real property which constitutes a change in ownership
(CIO) of the property (Revenue and Taxation Code §480;
all section references herein refer to this Code).
A CIO generally means when the prior owner no longer
continues to own the property (Steinhart v. County of Los
Angeles (2010) 47 Cal.4th 1298), and specifically means a
transfer of a present interest in real property, including the
beneficial use thereof, the value of which is substantially
equal to the value of the fee interest (§60).
When individuals, trusts, estates, and legal entities transfer real estate, whether or not any deed or other instrument
is recorded (e.g., upon change of a beneficiary under a trust),
the transferee has the duty to report a change in ownership to
the Assessor within ninety days for transfers after January
1, 2012, or forty-five days for transfers prior thereto, and
also to respond to a request of the Assessor for a Change in
Ownership Statement within the same time period, running
from the postmark date of mailing of the request (§§480(c),
482(a), both as amended by SB 507). However, for a transfer occurring upon a death, the trustee (if property is held
in trust) or the transferee must report within 150 days of
death; or if there is a probate, the personal representative
must report prior to filing the inventory and appraisement
(§§480(b), (c) and (e)), although a response to a request from
the Assessor is still ninety or forty-five days, as set forth
above (§480(c) as modified by SB 507).
For recorded instruments, the reporting requirement is
satisfied by a completed Preliminary Change in Ownership
8
Report (PCOR) accompanying the instrument at the time
of recording (§480.3). The PCOR should be completed
with care – it is the document where sufficient facts of the
transfer are to be disclosed to the Assessor in order to satisfy
the reporting requirements. As such, it is also the place to
set forth reasons why the transfer is not a CIO, if it is not.
If not reported on a PCOR accompanying a recorded
instrument, the deadline for filing a Change in Ownership
Statement (or supplemental information requested by the
Assessor) is met by the postmark date or the date certified
by a bona fide private courier service on the envelope containing the statement (§480(g)). (Note that for state assessed
properties, such as utilities, the request will come from the
Board of Equalization [BOE] and be filed with BOE, instead
of the Assessor.)
The statutory reporting requirements do not require any
statement of legal analysis as to whether a transfer is or is
not a CIO; they only require reporting of sufficient facts of
the transfer for the Assessor to make such determination. In
other words, timely reporting (including protectively) of sufficient
facts of the transfer will alleviate the risk of reporting penalties,
whether or not a CIO actually has occurred.
Where facts are insufficiently known by the reporting
deadline (e.g., a trust settlor’s death where the sub-trust
funding cannot be determined until the estate tax return is
completed), the reporting requirement can be met by timely
reporting all facts then known and later supplementing the
statement once the remaining facts are determined.
Possible Penalties
Unlike transfer of interest in legal entities, there are no
automatic, mandatory penalties for failure to timely file a
PCOR or Change in Ownership Statement.
However, when the Assessor requests a Change in
Ownership Statement be filed, failure to respond timely
can mean a penalty which is the greater of (a) $100, or (b)
10% of the taxes applicable to the new base year value, but
not to exceed $20,000 for transfers occurring on January 1,
2012, and following, on property not eligible for the homeowners’ exemption (that is, everything except a person’s
primary residence), or $5,000 for properties eligible for the
homeowners’ exemption, if such failures to file are not willful;
however, both of these penalty caps are limited to $2,500
for transferring occurring prior to January 1, 2012. (§§480(c),
482(a), both as modified by SB 507).
What if there is actually no CIO? Failure to respond to an
Assessor’s request will result in the $100 penalty amount.
What if the transfer is reported, but the Assessor makes
a second request for more information? Failure to timely
respond can still result in the penalty; however, the penalty
Santa Barbara Lawyer
Legal News
is applied only once per transfer, no matter the number of
Assessor’s requests (§482(c)).
What if the Assessor deems that the failure to respond
to a request was willful? The penalty will be the greater of
$100 or 10% of the new base year value without any cap.
SB 507 served to increase the penalty amount on properties with a new base year value (that is, the reassessed
value due to a CIO) in excess of $2.5 million. At the basic
1% tax rate, the prior $2,500 cap represented 1% tax on
$2.5 million value times 10% penalty. The legislation was
sponsored by the California Assessor’s Association for the
stated purpose of fostering greater taxpayer reporting compliance. Both the Legislature and BOE do not see the penalty
increase as revenue neutral and believe what increase may
be collected will be offset by greater compliance reducing
the number of penalties asserted, particularly due to the
extended ninety-day time frame.
Taxpayers may request abatement of any reporting penalty within sixty days of notification of the penalty by filing
the statement and making application to the Assessment
Appeals Board with proof that the failure to file was due
to reasonable cause and not willful neglect (§§483(a) and
(c)(1), as amended by SB 507 and SB 947).
As mentioned last month, there are several other possible
consequences for not reporting a transfer which is a CIO,
all beyond the scope of this article, but set forth in detail
in Green, “Property Tax Reporting Requirements and the
Consequences of Not Complying,” California Trusts and
Estates Quarterly, Vol. 15, Iss. 3, Fall, 2009, pp. 42-56, available online at www.taxlawsb.com/resources/PptyTax/
PropertyTaxReportingRequirements.pdf.
ship Statement or supplemental information from
the Assessor seriously and make sure the statement
or other response is filed by its due date.
3. Parties to a lease, or tenant in common owners, may
want to specify in writing who bears the burden
of payment of any increased tax due to a reassessment.
4. Except for probates and trusts, the transferee (e.g.,
buyer) of a real property transfer has the responsibility to report the transfer, will bear the cost of
any reporting penalties which may be levied, and
will bear the cost of the increased tax, if a reassessment is triggered. If some other arrangement
is desired, the parties to the transaction should
specify the arrangement in writing.
Dibby Allan Green, ACP (Advanced Certified Paralegal), specializes in property tax matters with Ambrecht & Associates, a tax,
family business, estates and trusts specialty law firm.
How to Protect Clients from Reporting Penalties
1. Prior to every transfer of interest in real property
—that is, every sale or exchange, every lifetime
gift or anticipated death, every change in a trust
beneficiary, any creation of a lease with a term
(including options) of thirty-five years or more, or
the termination of such a lease, or the assignment
of a leasehold estate where the remaining term
is thirty-five years or more (including options),
and any other form of transfer of interests in real
property—examine the transfer to determine the
possible risk of a CIO, and timely report the facts
of the transfer if there is any possible risk. Use a
PCOR to accompany recorded instruments, but if
nothing is recorded, use a Change in Ownership
Statement (form on the Assessor’s website).
2. Take every written request for a Change in OwnerDecember 2011
9
International Law
ICC Prosecutor
Opens Investigation
into Ivory Coast
Election Violence
By Christine Chambers
O
n October 3rd, Pre-Trial Chamber III of the International Criminal Court authorized Prosecutor Luis
Moreno-Ocampo to proceed with an investigation into post-election violence in Côte d’Ivoire.
History of the Conflict in Côte d’Ivoire
After a brief civil war in 2002, Côte d’Ivoire was split in
two—a primarily Muslim north and primarily Christian
south. Fighting continued, and the presidential election
that was supposed to take place in 2005 continued to be
pushed back on account of the violence. After a first round
election in October 2010, incumbent President, Laurent
Gbagbo, was defeated by former Prime Minister, Alassane
Ouattara, in a November 28th run-off election. However,
the Constitutional Council declared the results invalid, and
both men claimed victory and were sworn in as President in
separate ceremonies. The UN and international community
supported Ouattara and called for Gbagbo to step down.
The country plunged into a civil war that claimed more
than 1,500 lives. UN soldiers even entered the fighting, firing
on Gbagbo’s home, claiming retaliation for Gbagbo’s forces
targeting UN headquarters and foreign civilians. Gbagbo
continued to claim the presidency until he was arrested at
his home in April by Ouattara loyalists, with support from
French troops and UN peacekeepers.
Prosecutor’s Allegations
The Prosecutor alleges that Gbagbo, a Christian from the
south, used the media to paint Ouattara, a Muslim from
the north, whose father is from Burkina Faso, as an outsider, and incited his supporters to commit crimes including murder, disappearances, rape, and persecution against
perceived Ouattara supporters—immigrants or people of
foreign descent. Gbagbo forces also hired and armed foreign
mercenaries, and recruited and armed young people to fight
for their cause. The Prosecutor has not found evidence to
suggest pro-Ouattara forces committed crimes against humanity, but if authorized to investigate, he will investigate
such allegations, which have been made by Human Rights
10
Watch and Amnesty International.
Pre-Trial Chamber’s Findings
The Pre-Trial Chamber concluded that based on the
Prosecutor’s evidence, there was reason to believe forces
loyal to Gbagbo committed crimes against humanity against
civilians they suspected were associated with Ouattara,
particularly Muslims, West African immigrants, or persons
of West African descent. There is also reason to believe
pro-Ouattara forces committed crimes against humanity.
The Pre-Trial Chamber requested Moreno-Ocampo return
in a month with evidence relating to violence committed
between 2002 and the November 28, 2010, run-off election.
Legal Basis for ICC Investigation
The prosecutor is authorized to initiate investigations
into acts of genocide, crimes against humanity, and war
crimes under Article 15 of the Rome Statute (the statute
establishing the ICC). In this case, the prosecutor’s office
began a preliminary investigation and found that there was
sufficient evidence to probe into more detail, which may
lead to charges being filed. Cases may also proceed when a
country refers a situation to the Court (Article 14), or when
the Security Council refers a situation to the Court (Article
13), as it did with Libya and Darfur, Sudan.
Although Côte d’Ivoire is not a party to the Rome Statute,
it recognized the ICC’s authority in April 2003, December
2010, and May 2011. In April 2003, Côte d’Ivoire filed a
declaration recognizing the Court’s authority for crimes
committed within its jurisdiction as of September 19, 2002.
The Court generally only has jurisdiction over crimes committed after a state has become a party1. Therefore, the
Court may investigate crimes within Côte d’Ivoire committed on or after September 19, 2002.
This marks the seventh case or situation the ICC is investigating. All of the cases are in Africa.
Ms. Chambers is an associate with Hager & Dowling. She
interned at the International Criminal Tribunal for the Former
Yugoslavia in The Hague, Netherlands in 2008, and remains
interested in international criminal law.
Endnotes
1
I say “generally” because only crimes committed after the state
being investigated recognized the ICC’s authority can be considered per Article 14, when a state refers a situation to the Court, or
Article 15, when the prosecutor begins his/her own investigation.
However, Article 13(b) does provide for Security Council referral, in which case the country may not recognize the ICC (as is
the case with the investigation into crimes against humanity in
Libya).
Santa Barbara Lawyer
December 2011
11
Legal News
ing costs attributed to homeless recidivism, it became clear
that a new approach should be explored.
Restorative Court
Creates Permanent
Change
Restorative Court Begins
By Angela D. Roach
S
anta Barbara continues to hotly debate how our
community should respond to issues related to
homelessness. The debate centers around whether
efforts should focus on prevention, intervention, or enforcement. Some argue the best approach is to educate the
residents and visitors to adopt behavior to deter unwanted
behaviors, such as panhandling. This approach was applied when the Downtown Organization (D.O.) and its
Panhandling Education and Alternative Giving Campaign
launched the Real Change Not Spare Change Program in
April 2010, and with Santa Barbara City’s assistance with
affordable housing projects.
Others argue that additional funding should be directed
to intervention programs to assist those without a home
with physical or mental health treatment, food, lodging,
and other resources. This usually entails funding for local
shelters, detoxification programs, relocation funds, or hotel
vouchers.
Finally, others argue the best approach is to enact and
aggressively enforce municipal and state codes to protect
local business and tourism. This approach was adopted in
August 2009 when the Santa Barbara City Council amended
the Santa Barbara Municipal Code Chapter 9.50 to prohibit
“abusive panhandling” entirely within the City and “active panhandling” while on a public bench or other public
seating areas in specified parts of the City where homeless
populations can be found.
The debate becomes more complex when options are
decreased with evaporating public funding. Amid dwindling
public resources, in August 2010, a report of the Board of
Supervisors of Santa Barbara County found that fifteen
deaths of homeless in Santa Barbara County occurred
during a fifteen month period, and 89% of the deceased
had some type of mental illness. In May 2011, the Santa
Barbara County Grand Jury issued a report acutely entitled,
“Homeless Mentally Ill Indigent Recidivism: The Recycling
Is Not Good for the County.” This report found that the
mentally ill homeless recycle through local jails, draining
limited resources. With dwindling public funds and increas12
A former research attorney, Commissioner Pauline Maxwell helped research alternatives to respond to chronic
offenders of minor municipal and state codes often associated with being homeless– including illegal lodging, drunk
and disorderly, drunk in public, shopping cart violations,
and open container violations. These offenses involve high
recidivism rates and as a result, absorb massive court and
police resources. Moreover, many violations result in fines
that go uncollected. The model employed by other Counties was to provide for alternative sentencing—resolving
tickets and fines through community service. However,
this approach did not result in lower recidivism rates and
was already available in Santa Barbara. After learning about
Santa Barbara’s Restorative Policing Unit, Commissioner
Maxwell advocated for a court designed along the same
lines: promoting permanent change.
Restorative Court (RC) is a jail diversionary program for
chronic offenders of minor offenses associated with being
homeless. RC diverts eligible individuals charged with
transient related crimes to the entirely voluntary Court.
Commissioner Maxwell states, “This court isn’t in any
[political] camp. It’s a win-win situation for everybody,
because what we’re doing ends the waste of resources and
gets people off the street.” She describes the goals of RC to
“enforce the law, reduce recidivism, and reduce costs for
the Court and law enforcement.” Additionally, RC runs
without any public funding.
Restorative Court Process
Recognizing the urgent need to get the program off the
ground, Commissioner Maxwell decided to “pick a date
to begin and work out the kinks as we go.” On March 16,
2011, Commissioner Maxwell presided over the first RC
session. Before the first RC session, Judicial Officers presiding over criminal case loads, Police Department, Public
Defender, City Attorney, District Attorney and County
Jail officials met to identify eligible participants. Eligible
participants are usually identified by a restorative policing
officer. Violent offenders and people charged with drug
sales are not eligible.
If an individual is eligible, they can voluntarily elect to
participate in RC by signing an “entry contract.” The individual then appears in RC for a case management session
to establish a six-month case management plan. The case
management plan includes a specific plan to find the individual a home and address other needs, such as obtaining
Santa Barbara Lawyer
Legal News
medical or other benefits. The individual then reports back
to RC to assess the progress in accomplishing the identified goals. If the individual “graduates,” their charges are
dismissed.
To All Contributors of
Articles During 2011:
Thank you!!
Results
Although RC is in its infancy, the results are staggering.
So far, approximately eighty individuals have participated
in RC. Remarkably, approximately 10% of those obtained
permanent housing, 10% were provided clean clothing and
bussed to family members or friends elsewhere, 30% found
transitional housing, and 50% of the participants are still
involved and working to find permanent housing.
Beyond the statistics, individual stories demonstrate RC’s
success. One RC case involved a homeless man who had
lived on Santa Barbara’s beaches for thirteen years. He had
been arrested 671 times for open container, illegal lodging
or other violations. After electing to participate in RC, a
case management plan was established for “Tom,” which
included temporary housing and a plan to join a friend with
a home in Oregon. Ultimately, “Tom” was provided a train
ticket, he successfully joined his friend in Oregon and is no
longer homeless.
Another case involved a twenty-year-old homeless man,
“Mike,” who had suffered a brain injury as a child and had
an addiction to cocaine. His case management plan was to
find housing and provide a father figure to check in with
him each day. RC found housing through CASA and with
the daily support, “Mike” has not yet re-offended.
The Editors of the Santa Barbara Lawyer magazine
would like to express tremendous gratitude to everyone
in this legal community who has taken the time out
of their busy schedules to think about, research and
draft articles for our magazine. Lawyers are typically
very busy so writing an article involves cutting into
free time or time at work. Most of us do not regularly
write articles; doing so is outside of our comfort zone.
We greatly appreciate this effort and sacrifice. We especially thank those contributors, epitomized by Robert
Sanger, who write articles regularly, regardless of their
trial schedule or other commitments.
Santa Barbara County
Bar Association
Debtor/Creditor
Section Head
Opening
Future Plans
Commissioner Maxwell hopes RC “continues to meet the
needs of the participants and the community.” She plans
to expand the program and bring on an intern to prepare
more detailed court records to monitor specific outcomes.
Commissioner Maxwell’s RC, self-described as a “collaborative central clearing house,” has proven to be an effective,
innovative approach to a complex problem.
If your law practice involves debtors and/or creditors,
there is a rare and sought after opening for Head of
the Debtor/Creditor Law Section of the 2012 Santa
Barbara County Bar Association. In this position, you
would have the privilege of putting on continuing legal
education in this very active area of law. This is also
a strategic position for meeting other practitioners in
your area of law. If you are interested, please inquire
with Matt Clarke at [email protected], or
any other Officer of the Santa Barbara County Bar
Association. Don’t wait!
*If you are interested in supporting RC, you can make a tax
deductible donation to the Mental Health Association of Santa
Barbara County, 617 Garden Street, Santa Barbara, CA 93101,
and indicate “Restorative Court” in the memorandum. The funds
will be used to assist program participants accomplish their case
management plans. For example, for train tickets, housing applications, or trade tools.
December 2011
13
Legal News
The Supreme Court Denies
Compensation To Victim Of
Admitted Prosecutorial
Misconduct: A Review of
Connick v. Thompson
1
By Kelly D. Scott
I
n 1985, John Thompson was charged with murder in
New Orleans. Publicity following the murder charge
led victims of an unrelated armed robbery to identify
Thompson as their attacker. The New Orleans District
Attorney then charged Thompson with attempted armed
robbery. During the robbery investigation, an investigator
took a swatch of fabric stained with the robber’s blood
from one of the victim’s pants. That blood was tested and
revealed that the perpetrator had blood type B. Thompson’s
blood was never tested and the swatch or the crime lab
report was never disclosed to Thompson’s attorneys. A jury
convicted Thompson of the attempted armed robbery, and
a few weeks later prosecutors tried Thompson for the murder. Because of the armed robbery conviction, Thompson
chose not to testify in his own defense. He was convicted
and sentenced to death. Thompson spent eighteen years
in prison—fourteen years on death row. Weeks before his
execution in 1999, an investigator for Thompson’s attorneys
discovered the crime lab report from the armed robbery
investigation in the files of the New Orleans Police Crime
Laboratory. Thompson’s blood was tested and he was
found to have blood type O, proving that the blood on the
swatch was not his. Thompson’s execution was stayed,
his robbery conviction vacated, and his murder conviction
eventually reversed.
Thompson then sued the District Attorney’s Office and
won a $14 million civil rights judgment. The basis of that
judgment was not that an official policy had caused the
evidence suppression. The jury rejected that theory. Nor
was the basis that any official policymaker had ordered
the suppression. The District Court found no evidence
supporting that theory. The judgment depended on a subtler premise. The jury found that the suppression occurred
because the District Attorney, Harry F. Connick, Sr., had
been “deliberately indifferent” to the need to train his prosecutors about their duty to produce exculpatory evidence,
and that the lack of training had caused the nondisclosure
in Thompson’s case. The jury’s verdict was affirmed by the
Fifth Circuit Court of Appeals. The New Orleans Parish
14
District Attorney appealed to the United States Supreme
Court. The Supreme Court granted certiorari to decide
whether a district attorney’s office may be held liable under
§ 1983 for failure to train based on a single Brady violation.
On March 29, 2011, the Supreme Court reversed the Fifth
Circuit and held that a District Attorney’s Office cannot
be held liable for failure to train its prosecutors based on a
single Brady violation.
S. Kyle Duncan, Appellate Chief for the Louisiana Attorney General’s Office, represented District Attorney
Connick and the New Orleans Parish District Attorney’s
Office before the United States Supreme Court. I recently
had the opportunity to discuss the case with Mr. Duncan:
Q: The District Attorney conceded there had been a Brady
violation in this case when the prosecutors failed to disclose the
crime lab report to Thompson’s counsel. Given that concession,
how could the Supreme Court overturn the jury’s verdict that the
District Attorney was deliberately indifferent to the need for more
Brady training and that deliberate indifference caused the Brady
violation?
A: The answer has two pieces. First, remember that
we’re talking about the liability of a DA’s office, which is a
municipality. It’s black letter law that a municipality can’t
be liable simply because an employee (or employees) did
a bad thing. Instead, a plaintiff must prove that the office
itself was “deliberately indifferent” to someone’s rights.
That’s a high bar. Second, the only liability theory in play
was that the office “failed to train” prosecutors on Brady.
The Supreme Court’s seminal decision in City of Canton said
that, ordinarily, a plaintiff must prove a “pattern of violations” by employees that should have alerted policymakers
to a training problem. In this case, it was admitted that
Thompson did not prove any pattern. That means that,
under the normal rules of municipal liability, the office was
not liable as a matter of law.
Q: In Justice Scalia’s concurring opinion, he writes that there
was probably no Brady violation at all – except for the bad faith of
ADA Deegan – and that could not be attributed to lack of training.
Do you agree that one flagrant Brady violation cannot be used to
show there was a lack of training?
A: The key to Justice Scalia’s point is that Deegan’s violation was not just “flagrant,” but deliberate—he admitted he
buried the evidence on purpose! No amount of “training”
could have prevented that evil deed. But to answer your
question more fully: a really obvious Brady violation could
help prove a training claim, but a plaintiff would need
Continued on page 19
Santa Barbara Lawyer
December 2011
15
Legal Community
California Women
Lawyers’ Annual
Dinner 2011
By Laura Dewey
F
our hundred fifty attendees gathered at the Long
Beach Hyatt on September 15, 2011 for the California Women Lawyers’ Annual Dinner. The attention to detail was apparent as the guests began the evening with a cocktail reception and silent auction, then went
into a sumptuous vegetarian repast and exciting program
featuring Chief Justice of California, Tani Cantil-Sakauye
as Keynote Speaker.
The dinner program began with the introduction of
CWL President Patricia Sturdevant, whose career as a
trial lawyer, consumer advocate, and community activist
has been stellar. Ms. Sturdevant founded the DC-based
National Association of Consumer Advocates, for which
Chief Justice Tani Cantil-Sakauye and Hannah-Beth Jackson
Photos by Howard Watkins
16
she became the Executive Director. She later became the
Assistant Chief and Staff Counsel to the Enforcement Division of the California Department of Managed Health Care,
and she is currently serving as Deputy Commissioner for
Policy and Planning for California Insurance Commissioner
David Jones.
After celebrating the accomplishments of a long list of
notable women judges and lawyers, California Women
Lawyers then introduced Santa Barbara’s own Hannah-Beth
Jackson as the 2011 recipient of the prestigious Fay Stender
Award. The late Fay Stender was an advocate for the rights
of under-represented groups and individuals. Her tenacity,
creativity, and compelling sense of justice were legendary.
A founding member of California Women Lawyers, this
award is given annually to a feminist attorney who, like
Fay Stender, is committed to the representation of women,
disadvantaged groups and unpopular causes, and whose
courage, zest for life, and demonstrated ability to effect
change as a single individual, makes her a role model for
women attorneys.
Hannah-Beth Jackson was honored with the Fay Stender
Award for her work as an attorney and particularly for her
accomplishments as a state legislator, where she authored
many bills that defended women’s rights and advanced
feminist causes. Her legislation continues to aid women
with issues from child rearing to spousal support to economic and wage equality. Her stirring acceptance speech
brought the crowd to their feet, as she described her commitment to gender equality
CWL President-Elect Eliza Rodrigues then introduced a
Proclamation of the Judith Soley Lawyer as Citizen Award,
honoring the late Fresno family law attorney who, along
with her client, was murdered by the client’s estranged
husband during a break in trial proceedings.
Next, Chief Justice Tani Cantil-Sakaouye gave her keynote address, which was not only inspiring and delivered
entirely without notes, but which addressed her strong
concerns about the financial health of the justice system
after the $350 million reduction to the judiciary’s budget.
She also sharply criticized the recent introduction of a bill
authored by Assembly Member Charles Calderon, which
would have essentially stripped the Judicial Council’s authority over trial courts. She commented that no such bill
had been introduced during former Chief Justice Ronald
George’s fourteen-year tenure, but that it was brought out
on her forty-seventh day in office.
Following her address, the Chief Justice swore in the
2011-2012 CWL Board of Governors, which was followed
by CWL President Sturdevant’s concluding remarks concerning plans for the upcoming year.
Santa Barbara Lawyer
Legal Community
Gabriela Ferreira, Patricia Sturdevant, Jessica Glynn, Danielle De Smeth
Barbara Babcock, Author of Women Lawyer, The Trials
of Clara Foltz
Hon George
Eskin, Hon
Sharon MajorsLewis
Chief Justice Tani
Cantil-Sakauye,
CWL President
Patricia Sturdevant
Laura Dewey, Janet Vining Mitchell, Hannah-Beth Jackson, Danielle De Smeth, Angela Roach, Brandi Redman, Gabriela Ferreira, Amy Dilbeck,
Katherine House
December 2011
17
Legal Briefs
Attention!
2012 Mock Trial
Competition Scorers
Earn MCLE Credits While Providing
Community Service
The 2012 Santa Barbara County High School Mock Trial
Competition will be conducted at the Courthouse in Santa
Barbara on Saturday, February 25th and Saturday, March
3rd . This event is sponsored by the Constitutional Rights
Foundation, the Santa Barbara County Superintendant of
Schools and the Santa Barbara County Superior Court.
Attorney volunteer scorers are needed to help make this
a rewarding experience for our local high school students.
Interested attorneys are invited to apply now to earn one
hour of MCLE credit by participating in a mandatory training program in mid-February. Only those who attend the
training program will be permitted to serve as scorers.
Mock Trial Program information packets will be distributed
upon receipt of application, and scorers will be expected to
review the material before the training program.
Information will be provided by Josefina Martinez, who
may be contacted at [email protected] Ms. Martinez
and Stephanie Robbins, Mock Trial Program Coordinators,
will schedule the assignment of scorers for the sixteen trials
that will be conducted on February 25th and the six trials
on March 3rd.
The participating schools this year are, Cabrillo, Cate,
Dos Pueblos, Laguna Blanca, Santa Ynez, Santa Barbara,
San Marcos, and Santa Maria. Preliminary rounds will be
conducted during the morning and afternoon on February
25th. The semi-final round between the top four schools
will occur on the morning of March 3rd and the top two
schools will compete for the championship that afternoon.
- Hon. Brian E. Hill, Presiding Judge
- Hon. Art Garcia, Assistant Presiding Judge
To schedule a consultation, please call 805-879-7517
15 West Carrillo, Suite 300 • Santa Barbara, CA 93101
info @ elinorreiner.com • www.elinorreiner.com
18
Santa Barbara Lawyer
Legal News
Scott, continued from page 14
more. The majority decision in Connick categorically says
that, to prove a claim that a DA’s office was deliberately
indifferent to Brady training, you must show a pattern of
similar Brady violations. Only then would a DA be alerted
to the fact that prosecutors need specific training on Brady
tailored to an ongoing problem in the office.
Q: Justice Ginsberg wrote a vigorous dissent in this case and
even read it from the bench. It seems that she questioned whether
the Brady violation in Thompson’s case was a single incident and
implied that perhaps the violation was something between a single
incident and a pattern. Do you think the Thompson decision leaves
open the possibility that a District Attorney’s Office could be held
liable for failure to train for a flagrant Brady violation, as Justice
Ginsburg suggests?
A: I think it doesn’t. In Canton, the only exception the
Court identified to the “pattern” requirement is a situation
where the need for training is so “obvious” that failure to
provide it automatically amounts to deliberate indifference.
The example the Court used was where a police department
arms rookie officers, but provides them no instruction on
the constitutional limits on using deadly force. Canton was
saying, in that unusual situation, you don’t have to wait for
a pattern of excessive force incidents before you can find the
department deliberately indifferent. The Connick majority,
however, went out of its way to hold that an alleged failure
to train prosecutors on Brady does not fall into this kind of
“obvious” training category. Training lawyers on how to
apply the law, in other words, is nothing like training police
officers on how to legally arrest people.
A: Not at all. Someone in Thompson’s position can try to
prove that a policy or custom of a DA’s office on Brady matters
caused his injury. Or he can try to prove that a policymaker
in the DA’s office made a general decision on Brady matters
that harmed him. Or, under the Connick decision, he can try
to demonstrate a pattern of similar violations in the office.
Thompson, incidentally, attempted all these things at trial,
but was unsuccessful. The only theory the jury gave him
relief on was the “failure-to-train” theory, which, as the
Majority explains, was based on a flawed conception of the
Court’s cases. One other thing: someone in Thompson’s
position can usually sue under state wrongful conviction
statutes and receive some compensation. Thompson has
done this, and received compensation from Louisiana.
Admittedly, this is not nearly as much as his federal civil
rights verdict, but it does show that there are other avenues
for compensation.
Kelly D. Scott is a Deputy County Counsel for Santa Barbara
County and a member of the SBCBA Board. Kyle Duncan and
Gordon Cooney will be presenting the landmark case, Connick v.
Thompson at the 2012 Santa Barbara Bench & Bar Conference
on January 14, 2012. John Thompson currently resides with his
wife in New Orleans, Louisiana and is the director of Resurrection After Exoneration, a support group for exonerated inmates.
Endnotes
1 Harry F. Connick, District Attorney, et al. v. John Thompson (2011) 131
S.Ct. 1350, 2011 U.S. LEXIS 2594.
NOT JUST
BLACK
&WHITE
Q: Is it your position that a District Attorney’s Office can never
be held liable for a single incident of a Brady violation?
A: That was our position before the Court, and, as you
can tell from the oral argument transcript, it drew fire from
some of the members. But we didn’t back down because,
in our view, that position was compelled by the Court’s
municipal liability cases. We were quite pleased to see
that position vindicated by the majority opinion. Going
forward, to prove that a DA’s office was deliberately indifferent to training its prosecutors on their legal obligations,
a plaintiff will have to show a pattern of similar violations
by prosecutors. Only then will a DA be on notice that
something is wrong with the office’s training program and
needs to be fixed.
All of us negotiate, but some
of us are better than others.
Learn the skills needed to
make you a better negotiator.
Best Practices in
Negotiation
Saturdays, 9am-4pm,
March 24 & 31
Winter quarter begins Jan. 9.
UCSANTABARBARA
EXTENSION
Q: Doesn’t that position leave people like John Thompson—
who, after all, suffered a horrible injustice—with no remedy?
December 2011
805.893.4200 • EXTENSION.UCSB.EDU
WI2012-20 SB LAWYER 3.25 X 3.25 (11/11)
19
Criminal Justice
Secrecy, Presumption
of Government Records
Regularity, and the End of
Law as We Know It
By Robert Sanger
W
hile we are all busy practicing law here in Santa
Barbara, there are those who are attempting
to represent people who are imprisoned in
Guantanamo Bay. There is another world of law (or nonlaw) that is practiced by those lawyers. They are not allowed to meet with their clients, they get very minimal
discovery, and, to the extent that they do, they have to go
to Washington, D.C., be thoroughly searched going in and
out of a super-secret government office, read the discovery
without taking notes, and then leave. The discovery they
receive is redacted by the Government before it is deposited
for viewing. The same process applies if a client sends a
letter to his or her lawyer.
The court procedures are different as well. The United
States Supreme Court in 2008 overruled President Bush’s
effort to suspend the Writ of Habeas Corpus in Boumediene
v. Bush.1 Despite this enabling precedent, the federal trial
courts have been reluctant to grant relief, and the Circuit
Courts have not been liberal in their application of the
Supreme Court’s decision. Nevertheless, the United States
Court of Appeals for the District of Columbia Circuit, has
rendered an opinion that makes any habeas relief unlikely
for Guantanamo detainees. In this month’s Criminal Justice
column, we will look at a decision that was filed on October
11, 2010 but was just recently published.2
Secrecy
The most notable aspect of the opinion, to those who
have not been reading opinions and orders relating to
Guantanamo detainees, is that it is marked “SECRET” (now
with a strike-through) and that large parts of the opinion
are blacked out. This is America, and yet, few people know
that we have secret court decisions and redacted opinions
from our federal appellate courts.
We support our troops and it is reasonable to withhold
details of current military operations that would compromise their safety. It is likely that some—or, perhaps, many
—of the people detained at Guantanamo Bay are enemy
combatants who are properly held as prisoners of war. The
20
issue we address here is
not whether, as litigants
before the court, their
claims are meritorious, it is
whether we are destroying
our system of justice by
not giving them—and all
litigants—a fair hearing.
It is hard to imagine
what national security secrets there are that pertain
to some of these detainees,
many of whom had marginal roles, if any, and who
Robert Sanger
have been in custody for
ten years or longer. Even
if there is something that is properly concealed from the
public, it should not be of such volume that it requires the
redaction of one quarter of an appellate opinion, which is
the case in the Court of Appeals’ decision we will consider.
Transparency in government is considered a hallmark of
American governance. Americans are particularly critical
of the regimes of other countries that do not allow open
judicial review of government actions, particularly actions
by their militaries. Open courts, public proceedings and
public, if not published, decisions have been a protection
we take for granted.
Why is it that we now tolerate this kind of secrecy, not
only in executive action, but in our judicial decisions? Actually, it is something that we have seen throughout history.
When governments assume too much power, they tend to
have secret courts and special proceedings that must be held
in secret for the good of the realm. We Americans want to
hold ourselves above secret tribunals like the Star Chamber
in England or the Inquisition in Spain. Yet, we also know
that, in our own country’s history, we have had times of
repression. In hindsight, we find the Alien and Sedition laws
of the late 18th Century, the Japanese Internment Laws of
the 1940s and the Communist scare cases from the 1950s
to be regrettable excesses that would be unimaginable in
our enlightened democracy today. In hindsight, few people
seriously contend that the extent of such government conduct was necessary or just.
Yet, here we are with federal Courts of Appeals issuing
censored opinions, with lawyers not being able to see the
evidence against their clients and ordinary due process
being truncated. We tolerate it because we do not have
the benefit of being able to see our conduct outside of the
narrow politics of fear and hatred. And that politics of fear
and hatred is what generated the Alien and Sedition Acts,
Santa Barbara Lawyer
Criminal Justice
the Japanese Interment and the anti-communist scares. In
the same way that our American society was scared into
believing that those repressive laws were necessary, we
are being scared into believing that these laws are necessary today.
Latif v. Obama
The case of Adnan Farhan Abdul Latif v. Barack Obama3
is not only a secret, now redacted, court opinion, but one
based on a concept that seems contrary to our American
system of justice. It is written by Janice Rogers Brown, Judge
of the D.C. Circuit Court of Appeal. Judge Brown had been
appointed an Associate Justice of the California Supreme
Court in 1996 by Governor Pete Wilson. On the California
Court, she earned a reputation as a neo-conservative. 4 Her
appointment to the D.C. Circuit Court5 was considered a
move on the part of the Bush Administration toward solidifying that important Circuit Court behind the “unitary
executive” concept developed by the Federalist Society.
The Bush administration had used this doctrine to justify
the assumption of power of that Administration by the
Executive Branch.
In the Latif decision, Judge Brown wrote the opinion of
the Court that seems to uphold sheer military power at
the expense of the principles of the Rule of Law, transparency in government, civilian review of the military and
fundamental Due Process. It is difficult to determine the
precise parameters of the opinion of the majority, since
Judge Henderson concurred in a separate opinion and Judge
Tatel filed a vigorous dissent. Judge Brown also engaged in
a colloquy with Judge Tatel in her opinion, and it appears
that her opinion may have been modified in response to
criticism from Judge Tatel’s dissent. That also may account
for what appear to be some anomalies within the opinion
itself. Of course, the actual significance of the opinion is
rendered even more unclear since substantial portions of
the opinion have been blacked out.
The Latif case came to the D.C. Circuit from a determination by District Court Judge Henry H. Kennedy that the
government failed to carry its burden of proof in response
to Mr. Latif’s Petition for Writ of Habeas Corpus.6 The government based its case on a hearsay document described as
an “intelligence report.” The Petitioner had filed a declaration under penalty of perjury contesting the government’s
version of events. While all the court records are heavily
redacted, it appears that the controversy involves Mr. Larif,
a native of Yemen, travelling from Yemen to Afghanistan
in the year 2000. He was taken captive by Pakistani special
forces in late 2000 and turned over to the United States in
January 2001.
December 2011
During the habeas corpus proceedings, the government
submitted an intelligence report and declined to present
any witnesses. Mr. Latif rested on his written response to
the government’s intelligence report. After reviewing the
report, Mr. Latif’s declaration in response to the report, and
statements Mr. Latif had made during his years of interrogation, Judge Kennedy ordered the release of Mr. Latif, stating:
“The evidence upon which respondents primarily rely,
{redacted} is not sufficiently reliable to support a finding by
a preponderance of the evidence that Latif was recruited by
an Al Qaeda member or trained and fought with the Taliban. The document contains information that, {redacted}
would support a conclusion that Latifs detention is lawful,
and the Court does not take its contents lightly. But the
Court cannot credit that information because there is serious question as to whether {redacted} accurately reflects
{redacted} the incriminating facts {redacted} are not corroborated, and Latif has presented a plausible alternative
story to explain his travel.”
The government appealed.
Presumption of Government Records Regularity
The Circuit Court, through the opinion of Judge Brown,
reversed the order releasing Mr. Latif and ordered that the
case be remanded to the District Court for further findings.
Central to the Court’s ruling, however, is the remarkable
decision stating that the rule that ministerial governmental
documents are presumed to be regular would be applied to
the intelligence report which formed the evidence against
Mr. Latif. This rule of evidence is based on the idea that
ordinary ministerial government records kept in the ordinary course of business have a certain regularity. Ordinary
birth and death records, for instance, can be relied upon.
As to these innocuous records, the opposing party can still
go forward with evidence that the records were tampered
with or falsified.
Judge Brown, however, took this doctrine to a new level
and used it to presume regularity of the government “intelligence report” document which apparently included hearsay
and unsubstantiated reports from other people. We do not
know what the actual document says because it is labeled
“Secret,” and all references to its actual content are blacked
out of the Circuit Court opinion and elsewhere in the District Court records. The Circuit Court opinion recognizes
that the intelligence report was “prepared in stressful and
chaotic conditions, filtered through interpreters, subject
to transcription errors, and heavily redacted for national
security purposes.” Nevertheless, the Circuit Court opinion
Continued on page 27
21
22
Santa Barbara Lawyer
December 2011
23
Legal Community
Rebecca Eggeman was
recently appointed to
the Nonprofit Organizations Committee of
the State Bar of California’s Business Law Section. The Committee’s
activities include reviewing
and initiating federal- and
state-level legislative, administrative and judicial
developments relating to
nonprofit organizations. As
part of her participation in
the Committee, Rebecca co-presented a California State Bar
MCLE teleseminar on “Forming Nonprofit Corporations”
on October 6, 2011. Rebecca has established a solo practice that focuses
on serving nonprofit organizations and social enterprises,
Previously, she was a transactional attorney in Mullen &
Henzell’s business and real estate department, an insurance
coverage attorney at Minehan, McFaul and Fitch, and a
past president of the Santa Barbara Women Lawyers,
Her website is www.eggemanlaw.com.
Hager & Dowling is pleased to announce that Christine W. Chambers has joined the firm as an associate
attorney. Ms. Chambers will focus on tort and insurance trials and appeals. After earning her Bachelor of
Arts from Case Western Reserve University, Cleveland,
Ohio, she graduated from Case Western Reserve University School of Law, Cleveland, Ohio. Ms. Chambers
also interned at the International Criminal Tribunal for
the Former Yugoslavia, The Hague, Netherlands, and
recently served as a Legal Resource Center Volunteer for
the Legal Aid Foundation of Santa Barbara County.
24
Bruce N. Anticouni has announced his retirement
after forty years of practicing employment law
in California. Perhaps best known for his work on
wage and hour class actions, Bruce has also been a
major supporter of the Legal Aid Foundation, the
Santa Barbara Women Lawyers Foundation,
the Environmental Defense Center, and many
other non-profit organizations in Santa Barbara.
Mr. Anticouni will continue to provide advice and
representation on employment matters to non-profit
organizations on a pro bono basis.
Kristi D. Rothschild, has established her own law firm. Formerly with Anticouni & Associates, Kristi’s practice
will continue to focus on employment related matters,
including class action litigation.
The Santa Barbara Barristers are pleased to announce that Reed Olmstead has joined the Board of
Directors. Reed attended the Santa Barbara College of
Law and was admitted to the California Bar in May
2010. He is currently an associate at Hurlbett & Faucher, LLP, and focuses on representing consumer and
small business debtors and creditors in cases under
Chapters 7, 11, 12 and 13 of the Bankruptcy Code
and representing Chapter 7 and Chapter 11 Trustees.
Please join the Santa Barbara Barristers for a
Swearing-In Ceremony for all those who passed
the July 2011 Bar Exam on Tuesday December 6,
2011 at 5pm in Dept. 2 at the Santa Barbara Courthouse at 1100 Anacapa St. Results for the exam will
be released Friday November 18, 2011. More details
to follow. All are welcome to come and support the
Santa Barbara legal community’s newest members.
If you have news to report - e.g. a new practice, a new hire or
promotion, an appointment, upcoming projects/initiatives by local
associations, an upcoming event, engagement, marriage, a birth
in the family, etc… - The Santa Barbara Lawyer editorial board
invites you to “Make a Motion!”. Send one to two paragraphs
for consideration by the editorial deadline to our Motions editor,
Mike Pasternak at [email protected] If you submit an accompanying photograph, please ensure that the JPEG or TIFF file
has a minimum resolution of 300 dpi. Please note that the Santa
Barbara Lawyer editorial board retains discretion to publish or not
publish any submission as well as to edit submissions for content,
length, and/or clarity.
Santa Barbara Lawyer
“Finally, someone my clients
can count on just like they count on me.”
Your relationship with your clients is all about trust. They trust your integrity and expert
legal advice. And they value the personal and confidential relationship you share.
It’s very much the same at Montecito Bank & Trust. Like you, we believe in longstanding
client relationships. In offering creative solutions for each person’s unique needs.
And especially in earning their trust with personal commitment and professional expertise.
Whether it’s designing an investment portfolio, managing multiple real estate properties
or planning charitable gifts, you can count on our Wealth Management team to provide
your clients with a level of service that meets not just their needs, but your standards.
Wealth advisory services – one of the many Paths to prosperity® you’ll find
at Montecito Bank & Trust.
What’s your path?
WEALTH MANAGEMENT
Investment Management - Trust Services - Estate Administration
Real Property Management - Philanthropic Services
www.montecito.com
Call for more information
Santa Barbara: 1106-E Coast Village Road, Montecito, CA 93108 • 805 564-0219
Solvang: 591 Alamo Pintado Road, Solvang, CA 93463 • 805 686-8620
Ventura/Westlake Village: 701 E. Santa Clara Street, Ventura, CA 93001 • 805 830-8005
Montecito Bank and Trust: “Count on me” New Zip
December 2011
Santa Barbara County Bar Association
Wealth Management- 7.5” x 10” Non- Bleed
25
Member FDIC
Legal Community
Verdicts & Decisions
Ricardez v. McCorkendale, et al.
Santa Barbara Superior Court, Anacapa Division
Case Number: 1301059
Type of Case: Auto
Type of Proceeding: Jury trial
Judge: Hon. Denise De Bellefeuille
Length of trial: 11 Days
Length of deliberations: 2 ½ Days
Date of Verdict or Decision: July 25, 2011
Plaintiff: Adriana Ricardez
Plaintiff’s Counsel: Torsten Bassell and Nicole Lari-Joni of The Lari-Joni Law Firm, Alan H. Fenton of the Law Offices of Alan H. Fenton
Defendants: Clifton McCorkendale, David Tedesco, and Farmers Insurance
Defendants’ Counsel: Howard Cho of Cho & Brown and Bruce Schechter of Veatch Carlson
Experts: For Plaintiff: Dr. Alan Moelleken (orthopedic surgeon), Edward Bennett (vocational rehabilitation), Gary Gray
(CPA), and Dr. Jesse Wobrock (accident reconstructist); For Defendant: Dr. Steven Nagelberg (orthopedic surgeon), and Mr.
Jai Singh (accident reconstructionist)
Facts and Contentions: On July 13, 2006, a four-vehicle, rear-end accident occurred on the Northbound 101
freeway in Summerland, California. The first vehicle (V1) stopped in congested traffic. Plaintiff (V2) stopped behind V1.
The driver of the third vehicle (V3), Defendant Tedesco, contended he stopped behind V2 before the accident and then
was pushed into V2 by V4, driven by Defendant McCorkendale. Plaintiff claimed that V3 (Tedesco) rear-ended Plaintiff
before V3 was rear-ended by V4.
Summary of Claimed Damages: Plaintiff claimed total damages of $1,710,022, as follows: past medical expenses ($284,125.00), past lost earnings ($133,217.00), future medical expenses ($291,040.00), and future lost earnings
($1,001,640.00).
Result: The jury voted 10-2 that Defendant Tedesco was negligent. The jury voted 12-0 that his negligence was a
substantial factor in causing Plaintiff’s harm and that he was acting within the scope of his employment with Farmers
Insurance Company and the Law Offices of Vail & Stub at the time of the accident. The jury voted 12-0 that Defendant
McCorkendale was negligent and that his negligence was a substantial factor in causing Plaintiff’s harm. The jury allocated fault 64% to Defendant Tedesco and 36% to Defendant McCorkendale.
The jury awarded Plaintiff total damages of $3,890,625.46, as follows: past medical expenses ($284,125.46), past lost
earnings ($159,000.00), other past economic loss ($0.00), future medical expenses ($415,000.00), future lost earnings
($667,500.00), other future economic loss ($390,000.00), past non-economic loss ($225,000.00), and future non-economic
loss: ($1,750,000.00).
26
Santa Barbara Lawyer
Criminal Justice
Sanger, continued from page 21
gives the report a presumption of regularity.
One of the anomalies, or series of anomalies, in the opinion is the acknowledgement, “without deciding,” that the
standard of proof in the habeas proceeding is on the government to establish lawful detention by a preponderance of
the evidence. Thus, early in the opinion, it is said that the
presumption of regularity of the government intelligence
report is limited to the presumption of authenticity of the
document and not to its accuracy. However, the opinion
then characterizes Latif’s challenge to the intelligence
report as a challenge to the “evidence-gathering process
itself.” Because of that, the presumption of regularity to the
government document is held to apply. Then, to turn the
burden of proof on its head, the opinion states:
“Because the Report is entitled to a presumption of
regularity, and because the Report, if reliable, proves the
lawfulness of Latif’s detention, we can only uphold the
district court’s grant of habeas if Latif has rebutted the
Government’s evidence with more convincing evidence
of his own.”
So, under Latif v. Obama, the detainee, not the government, now has the burden of proof by convincing evidence.
The only burden on the Government is to present a document, prepared under questionable circumstances, to which
there will now be a presumption of regularity.
Our system of justice is based on the requirement that
the government produce actual evidence of guilt, not
anonymous hearsay dossiers, as is the practice in many
totalitarian regimes. Yet this opinion used an otherwise
innocuous rule of evidence to introduce into the American
system of justice this very concept of trial by dossier. Once
there is a dossier (an intelligence report), the detainee has
the burden of rebutting the dossier “with more convincing
evidence of his own.”
The United States Supreme Court needs to address this
issue in a principled fashion. This opinion places government convenience (or worse) beyond the review by the
courts and well beyond the public view. The presumption
of regularity, if applied to accusatory documents, puts the
government beyond the law or accountability. The redacted
form of this censored opinion also reaffirms the already
entrenched position that there is no transparency when
the United States is involved in some sort of international
conflict. It is also disconcerting that the United States is in
an almost perpetual state of international conflict and that,
just like the claim that secrecy was required for the “cold”
war need to fight communists, this gives far too much leeway to the military and the rest of the Executive Branch.
December 2011
The problem is that our objection is always met by the
claim of those in power, that we cannot know the extent
of the threat. We, the public, cannot criticize because we
do not have the information; we cannot have the information because the government claims it must be kept secret.
Throughout the history of our nation and others, people
have been told that they have to accept it. Our nation has
survived periods of repression in its history only because
there are those who object to secrecy and lack of accountability.
Conclusion
Even if there is something requiring all the secrecy in this
particular instance—perhaps, somehow, this old government document discussing Mr. Latif’s travels in 2000 has
to be kept secret because it compromises current national
security—the presumption of government records regularity cannot be applied to allow the government to stand.
Even where national security is implicated, there has to be
accountability and as much transparency as the situation
will allow.
Robert Sanger is a Certified Criminal Law Specialist and has been
a criminal defense lawyer in Santa Barbara for 38 years. He is
a partner in the firm of Sanger & Swysen. Mr. Sanger is an
Officer of California Attorneys for Criminal Justice (CACJ) and
is the Co-Chair of the CACJ Death Penalty Committee as well
as a Director of Death Penalty Focus and a Member of the ABA
Criminal Justice Sentencing Committee and the NACDL Death
Penalty Committee.
Endnotes
1 Boumediene v. Bush, 128 S. Ct. 2229, 2242 (2008).
2 The one year delay in publication was apparently required to
censor the opinion.
3 Latif v. Obama, 10-5319, 2011 WL 5431524 (D.C. Cir. Oct. 14,
2011).
4 Judge Brown has made many public statements in support of
her libertarian/conservative views. One of the more remarkable
speeches was given before the Federalist Society meeting at the
University of Chicago, April 20, 2000, while she was a Justice of
the California Supreme Court. The text is located at: http://www.
communityrights.org/PDFs/4-20-00FedSoc.pdf.
5 Judge Brown was nominated by George W. Bush in 2003 to the
D.C. Circuit, however, her confirmation was contested and her
appointment was not confirmed by the Senate until 2005. She
was originally nominated by President Bush with the thought that
she might be nominated to the United States Supreme Court in
due course. That did not happen.
6 Judge Kennedy’s Memorandum Opinion can be found at: http://
sblog.s3.amazonaws.com/wp-content/uploads/2011/11/LatifJudge-Kennedy-opinion-8-16-10.pdf.
27
Classifieds
Latina/o Lawyers of Santa Barbara
Present a Film
Office Space Available
Free standing building, 943sf, three offices, two parking
spaces, rear of 1531 Chapala Street, $2.60 full service gross
includes utilities. Charming, quiet site, professional environment. Gina Meyers, CB Commercial, 898-4250.
“Which Way Home”
Tuesday, December 13th
12:10 PM
Department 1 of the Superior Court
Office Space Available
Small firm seeks compatible attorney to share office space
one block from courthouse. Corner office (16x17) with view
of court house. Secretarial and reception service available,
as well as covered parking. Call (805) 963-9585.
This compelling documentary film begins with
14-year-old Kevin and 13-year-old Fito, who are from
Honduras, crossing the border into southern Mexico.
They are embarking upon a journey with the end goal
of reaching the promised land, the United States of
America. Their plan is to “hop a freight”, to ride on
the tops of trains the 1400+ miles to the U.S. border.
Thousands of persons make the same journey each
year. A surprising number of them are children, unaccompanied by any adult. The Mexican government
has instituted aid mechanisms to protect those on the
perilous journey.
Why do they leave their homes and families and embark on a high risk, life threatening trip? What are the
circumstances that compel them to leave their homeland to seek a new life? What are their expectations
regarding life in the U.S. and are they at all realistic?
How many of them are seeking to find a parent who
left home years ago to find work in the U.S., never to
be heard from again?
Many of them die, or are maimed along the route.
They drown in the ocean or in a river. They are bitten
by rattlesnakes or are hit by fast-moving cars on busy
highways. They suffocate in locked truck trailers and
boxcars stuck on sidings. Some are shot down trying
to run from border agents or by Arizona ranchers who
advertise “human safaris”. They are beaten or shot to
death by border thieves, drug cartels (because they
refuse to run drugs), or human smugglers because they
can’t pay their fee. They die frozen, stiff as a log, up in
the Rumarosa Mountains buried under the snow. Many
die of heat exhaustion in the desert. Many are victims
of crime, some of an unspeakable nature. But they keep
coming and some make it through. This film will enlighten regarding their circumstances and motivations.
Please bring a brown bag lunch. Please contact Josefina at 882-4560 at least 24 hours in advance so we can
plan for an expected attendance. The film is approximately 79 minutes in length, so please try to arrange
your schedule so you can stay until approximately 1:45
PM, if you want to stay for a brief discussion.
Connecting
x
ATTORNEYS • PARALEGALS • LEGAL STAFF
confidential
employment
placement
Kathi A. Whalen ~ President
79 E. Daily Drive
Suite #249
Camarillo, CA 93010
Ventura County 805 389-3663
Santa Barbara 805 965-2020
Cell 805 443-8422
Fax 805 512-8118
www.whalenbryan.com
Paralegal
PROFESSIONAL CERTIFICATE PROGRAM
BECOME A PARALEGAL IN
AS FEW AS 6 QUARTERS.
UCSB EXTENSION. YOUR NEW CAREER AWAITS.
UCSANTABARBARA
EXTENSION
28
Santa Barbara Lawyer
805.893.4200 • EXTENSION.UCSB.EDU
2012 Membership Application
Member Name: _____________________________________________________________________________________
Check here if you do not want your name and office address disclosed to any buyer of Bar Assoc. mailing labels.
Check here if membership information is the same as last year. If so, the rest of the form may be left blank.
Office Address: _____________________________________________________________________________________
__________________________________________________________________________________________________
City: ________________________________________________
State: _________
Zip: ___________________
E-Mail Address: _____________________________________________________________________________________
Phone Number: ________________________________________
Fax Number: ____________________________
Home Address: _____________________________________________________________________________________
City: ________________________________________________
State: _________
Zip: ___________________
State Bar #: ___________________________________________
Year Admitted to Bar: _____________________
Your member dues include a subscription to Santa Barbara Lawyer.
SCHEDULE OF DUES FOR 2012
Active Members
$130
Student Members
$30
New Admittees (First Year Attorneys Only)
$00
Affiliate Members (non-Attorney members only)
$65
Santa Barbara County Bar Foundation donation
$______.__
Total amount enclosed
$______.__
AREAS OF INTEREST OR PRACTICE (check box as applicable)
ADR
Family Law
Civil Litigation
In-House Counsel & Corporate Law
Debtor/Creditor
Intellectual Property/Tech. Business
Elder Law
Real Property/Land Use
Employment Law
Taxation
Estate Planning/Probate
I am interested in receiving information about the SBCBA Lawyer Referral Service
Mail completed form along with check to:
Santa Barbara County Bar Association, 15 West Carrillo Street, Suite 106, Santa Barbara, Ca 93101 Tel: (805)569-5511
Donations to the Santa Barbara County Bar Foundation are tax deductible to the full extent provided by law
to a 501(c)(3) non-profit organization.
December 2011
29
December 2011
Calendar
SUNDAY
MONDAY
TUESDAY WEDNESDAY THURSDAY
FRIDAY
SATURDAY
1 23
Family Law
Section Morning
Coffee
456789
10
Santa
Barbara Lawyer
Submission Deadline
11121314 151617
Latina/o Lawyers Film
Presentation
18192021222324
25262728293031
2011 SBCBA SECTION HEADS
Alternative Dispute Resolution
David C. Peterson
441-5884
[email protected]
Debtor/Creditor
Section Heads Needed
Bench & Bar Relations
Herb Fox
[email protected]
Elder Law
Denise Platt [email protected]
Jody Moore [email protected]
Civil Litigation
Naomi Dewey
Client Relations
Thomas Hinshaw [email protected]
Lol Sorenson [email protected]
899-4777
604-7130
604-7130
963-3301
729-2526
649-1389
Employment Law
Rafael Gonzalez [email protected]
Paul Wilcox
[email protected]
Estate Planning/Probate
Lori Lewis
[email protected]
30
966-1501
966-1501
Family Law
Jennifer Drury [email protected]
Vanessa Kirker
[email protected]
Santa Barbara Lawyer
964-5105
In-House Counsel & Corporate Law
Betty L. Jeppesen 963 -8621
[email protected]
Intellectual Property/Tech. Business
Christine L. Kopitzke 845-3434
[email protected]
Real Property/Land Use
Bret Stone [email protected]
966-1501
879-7523
Taxation
Peter Muzinich [email protected]
Joshua P. Rabinowitz [email protected]
898-9700
963-9721
963-0755
The Santa Barbara County Bar Association wishes its
membership a joyous holiday season.
Law Offices of
JARRETTE & WALMSLEY
ROBERT R. WALMSLEY
CALIFORNIA FAMILY LAW APPEALS
ƒPublished family law appeals lawyer
ƒOver 23 years experience
ƒAppeals, writs, and post-trial motions
ƒProperty, custody, and support appeals
ƒMember of the American Academy of
Adoption Attorneys, Academy of
California Adoption Attorneys, and
Academy of California Family
Formation Lawyers
www.jarrettewalmsley.com
Telephone: (805) 845-7700
Facsimile: (805) 845-7705
120 El Paseo, Santa Barbara, California 93101
Email: [email protected]
r u b e n st e i n
s o r e n s e n
a dr
servi c e s
Mediation, Arbitration
Referee, Special Master
We are proud to announce
the opening of our new office at
211 E. Anapamu Street,
Santa Barbara 93101
Ready to set tle your case
Real property
Probate
Business
Family business and succession
Employment
Personal injury
December 2011
Judith Rubenstein, J.D., M.A., Psych.
[email protected]
www.rsmediate.com
t 805.892.2747
dl 8 0 5 . 6 3 7 . 6 8 5 0
Lol Sorensen, J.D., M.S.W
lo l @ r s m e d i a t e . c o m
www.rsmediate.com
t 805.892.2747
dl 8 0 5 . 6 8 9 . 6 6 5 4
31
Prsrt Std
Santa Barbara Lawyer
U.S. Postage Paid
Santa Barbara, CA
The Santa Barbara County Bar Association
15 W. Carrillo St., Suite 106
Santa Barbara, CA 93101
Permit #734
Change Service Requested
For your Real Estate needs, choose
carefully and choose experience!
“I’ve been a Lawyer for 18 years and a Real Estate Broker with
my own company for 15 years.”
Gary Goldberg
Real Estate Broker • Licensed Attorney
UC Hastings College of Law • Order of the Coif
DRE License # 01172139
“As a real estate company owner beginning my 15th year of serving Santa Barbara, I look
forward to helping you buy or sell real estate property, and as always, personally dedicating
myself to striving for excellence in every transaction. My expertise and detailed knowledge of
properties includes Montecito, Hope Ranch, Carpinteria, Summerland, Goleta, Santa Barbara,
and all the surrounding beach communities.”
Over $400,000,000
Sold Since January 1, 2000 Among the top 10 agents in Santa Barbara
(per MLS Statistics in Gross Sales Volume)
• Intensive Marketing Plan for
each listing
• Member, Santa Barbara, Ventura,
and Santa Ynez Real Estate
Boards
• Expert witness in Real Estate
and Divorce Matters, and Estate
Planning
• Licensed Attorney, Professor
Real Estate Laws Course at
SBCC
1086 Coast Village Road, Santa Barbara, California 93108 • Office 805 969-1258 • Cell 805 455-8910
To view my listings visit www.garygoldberg.net • Email [email protected]
32
Santa Barbara Lawyer