The National Law Journal's L.A. Legal Pad

State Supreme Court : Sexual orientation is suspect class

One of the most significant aspects of last week's ruling on same-sex marriage was the finding that sexual orientation is a suspect class that requires discriminatory laws to be reviewed under strict scrutiny, lawyers told The Recorder.

"California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in)," Yale law professor Kenji Yoshino wrote in an article for Slate.com. "This pronouncement is critical because it is portable—that is, gays [and lesbian and bisexual people] can now challenge any California state policy that discriminates on the basis of sexual orientation," wrote Yoshino.

Companies may need to change employee policies as well. For example, "if an out-of-state company has a benefit plan and it defines the people getting it as 'employee and spouse,' then a person in a marriage by a same-sex couple in California would get the benefit," Jon Davidson, legal director of Lambda Legal, told the Los Angeles Times.

Challenging the challenge to same-sex marriage

One careful reader of the last week's same-sex marriage decision discovered a potential protection against the proposed constitutional amendment being pushed by opponents of same-sex marriage, The Recorder reported.

Former Santa Clara judge LaDoris Cordell told The Recorder that the California Supreme Court's decision may be protected by a paragraph in the ruling that marriage is "so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process." (page 6)

Attorney Glen Lavy, who supports the proposed initiative, countered that the court is speaking specifically to statutory initiatives, not constitutional ones.

The initiative could also be challenged in court because it doesn't specify whether the proposed amendment would apply retroactively to marriages performed before November, the San Francisco Chronicle pointed out. 

Allen Matkins promotes four to partner

Allen Matkins promoted four attorneys to partner at their Southern California offices.

In Los Angeles:

Monica Quinn, who will focus on handling employment disputes including wrongful termination, harassment, discrimination, retaliation and other employment-related matters.

Alex Choi, who will focus on financing transactions, including corporate credit facilities, lease financings, mezzanine debt, securitized loans, constructions loans, letters of credit and other credit facilities.

Paul Obico, who will focus on the formation, financing, operation, merger and reorganization of real estate joint ventures, partnerships and limited liability companies.

In San Diego:

Michael Holmes, who will focus on business and real property litigation in state and federal courts in the San Diego office.

L.A. Judge Michael Sauer to retire

Los Angeles judge Michael Sauer is retiring, the Metropolitan New-Enterprise reported.

Then-Gov. Ronald Reagan appointed Sauer to Los Angeles Municipal Court in 1972. He was elevated to Superior Court in 2000 when the two courts combined. He worked mostly in misdemeanor, preliminary hearing and arraignment courts, according to Met News.

Sauer made headlines last year as the judge who sentenced Paris Hilton to 45 days in jail for violating probation.

His last day will be on June 5, though he won't officially retire until a month later.

Senate Judiciary Committee approves 5 new federal judgeships in L.A.

The Senate Judiciary Committee passed a bill on Thursday creating five new federal judgeships in Los Angeles, one which is temporary, and six new judgeships at the 9th U.S. Circuit Court of Appeals.

“Congress has not passed a comprehensive bill to create new judgeships since 1990, and since that time, America’s courts have become strained under massive caseloads. And California’s federal courts are shouldering the brunt of the pain,” Sen. Dianne Feinstein (D-Calif.), a co-sponsor of The Federal Judgeship Act of 2008, said in a press release.

Kozinski cites himself in opinion

The chief judge of the 9th Circuit U.S. Court of Appeals cited himself in order to impose sanctions on an attorney who filed a frivolous discipline complaint against a district judge, The Recorder reported.

Judge Alex Kozinski cited only one other case where sanctions were sought for an apparent first transgression - a 1983 ruling he wrote when he was chief judge of the claims court.

Read the full story here

Hollywood private eye Anthony Pellicano convicted in racketeering case

Private investigator Anthony Pellicano was convicted of 76 federal criminal charges on counts of racketeering, wire fraud, computer fraud and wiretapping.

Pellicano didn't testify in his defense to avoid talking about his clients.
This worked out well for his clients, who were questioned but not charged, the Los Angeles Times reported. His frequent employer and mentor, entertainment lawyer Bert Fields, was never questioned on the stand or charged, according to the Times.

Los Angeles lawyer Terry Christensen, the only lawyer indicted in the case, still awaits his trial. Christensen, managing partner of L.A. firm Christensen Glaser, plead not guilty to allegations that he paid Pellicano over $100,000 to wiretap the the ex-wife of billionaire Kirk Kerkorian, during a high-profile paternity dispute in 2002.

Richardson & Patel to acquire Weinstein Weiss

Richardson & Patel has agreed to acquire Weinstein, Weiss & Ordubegian to serve as its new bankruptcy and reorganization practice group as of July 1.

David Weinstein, Sharon Weiss and Aram Ordubegian, the three partners of the Los Angeles bankruptcy boutique, will join Richardson & Patel as partners, along with associates and staff.

Richardson & Patel, which is based in Los Angeles, handles corporate and securities law. The 40-attorney firm has a New York office.

-- Amanda Bronstad

Federal judge Benetiz won't recuse himself from pension fraud case

San Diego federal judge Robert Benitez refused to recuse himself from a pension fraud case involving state disclosure laws, despite claims by prosecutors that his past violations from state disclosure laws could affect his impartiality, KPBS reported (LISTEN).

UPDATE: State ban on same-sex marriage ruled unconstitutional

Same-sex couples have a constitutional right to marry, the California Supreme Court ruled in a 4-3 decision (read the full, 121 page decision here).

California is now the second state in the country to legalize same-sex marriage, after Massachusetts. Same-sex couples can apply to be married when the decision goes into effect in 30 days.

Not so fast

Conservative religious groups are pushing an initiative to have voters decide in November on a constitutional amendment outlawing same-sex marriage. They submitted 1.1 million signatures, of which 694,354 must be found valid to make it onto the ballot. If the initiative went to vote and passed, it would overrule today's decision. However, it could still be challenged in court because it doesn't specify whether the proposed amendment would apply retroactively to marriages performed before November, the San Francisco Chronicle points out.

Jordan Lorence, an attorney with the conservative Alliance Defense Fund, told the Associated Press (before the ruling) that his group would ask the justices to stay their decision until after November, if they ruled against the same-sex marriage ban. Lorence said that a decision to legalize same-sex marriage would bring the issue back to the national stage and show that Massachusetts is not "leading a one-state parade."

In a press release, Gov. Arnold Schwarzenegger reiterated earlier comments, saying that he "will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

The opinion of the court was given by Chief Justice Ronald George, joined by Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno. Justice Marvin Baxter, who dissented, was joined by Justices Ming Chin and Carol Corrigan.

Read The Recorder's coverage here

Read The American Lawyer's Q&A with:

• Openly gay Covington partner Bruce Deming
• Heller Ehrman partner Stephen Bomse on the firm's pro bono work in the case

WATCH: CNN Coverage, CNN: Gavin Newsom on the decision, ABC7 Coverage

Background on the case

In March 2004, the state Supreme Court stopped a month of same-sex weddings allowed by San Francisco Mayor Gavin Newsom. Gay and lesbian couples, the city of San Francisco and two LGBT rights groups subsequently sued, claiming the law banning same-sex marriage violated the fundamental rights to marry, to privacy, to freedom of expression and to equal protection of the laws based on sex and sexual orientation.

In 2005, San Francisco Superior Court Judge Richard Kramer ruled that the ban on same-sex marriages was unconstitutional. In 2006, a state appeals court disagreed, ruling 2-1 that it was the role of voters and legislators to define marriage, not the courts. The California Supreme Court heard oral arguments on the marriage cases in March (LISTEN on Windows Media Player, WATCH on Real Player).

During this period, the state legislature twice passed laws to make same-sex marriage legal, but were vetoed by Gov. Schwarzenegger.

Gay marriage rights elsewhere

According to About.com, civil unions are available in New Jersey, Vermont, Connecticut and New Hampshire, while domestic partnerships are legal in Oregon, Washington and California. A national map, detailing the current policy in each state in the United States, is available on National Public Radio's website (here).

Same-sex marriage is legal in Canada, Belgium, Netherlands, South Africa and Spain. Same sex unions or partnerships are available in 13 European countries and Mexico.

Same-sex marriage is banned in Honduras, Latvia and Uganda.

UPDATE: Before the ruling, Cal Law interviewed some of the people involved in In re Marriage Cases (video below)

Dreier forms affiliated sports marketing group in Santa Monica

Dreier LLP has formed an affiliated sports marketing and consulting firm called Dreier Sports Opportunities Group LLC.

Don Gibson, former general counsel and senior vice president and acting president for Major League Baseball Properties Inc., will be chief operating officer of the group, a separate business entity based in Santa Monica, Calif. While at Major League Baseball Properties, Gibson combated infringement and counterfeiting of Major League Baseball trademarks. After that, he was chief operating officer of the Naismith Memorial Basketball Hall of Fame in Springfield, Mass., and founded his own sports management agency, XL Sports, in 2000. He is now a partner at the firm's Los Angeles affiliate, Dreier Stein Kahan Browne Woods George.

Dreier Sports Opportunities Group, which complements the New York-based firm's sports law practice, will assist athletes and their agents in marketing their products, services and images.

Earlier this year, Dreier opened a Pittsburgh office after hiring three sports attorneys who represent Major League Baseball players in an investigation into performance-enhancing drugs. Last year, Dreier launched an alliance with SK Sport and Entertainment, a firm in London, to promote athletes in U.S. and European markets.

-- Amanda Bronstad

It's Juror Appreciation Week

This week is Juror Appreciation Week, Cal Law's Legal Pad points out (here).

From May 12-16, all courts will give out magnets, banners, buttons and certificates of appreciation from the Administrative Office of the Courts.

Los Angeles County Superior Court is also providing pens, pencils and water bottles.

Orange County Superior Court is giving food, Post-It notes printed with statements of appreciation, bookmarks and will run messages of appreciation on its electronic marquee and on large cloth banners outside the courthouses.

Bombed San Diego Courthouse seeks $340 million in construction funding

The Edward J. Schwartz Federal Courthouse in downtown San Diego was seeking construction funding over security concerns before it was bombed on May 4, The National Law Journal reported.

The bombing broke glass doors and windows and bent door frames in its lobby.

In March, Rep. Susan A. Davis, D-Calif, lobbied for $230 million in construction funding for the courthouse.

But with rising construction costs, the project needs another $110 million, a press secretary for Davis told The NLJ.

The money would pay for building a new annex across the street from the courthouse - giving the buildings more space so offices and courtrooms don't have to be on the ground floor - as well as better security, such as bulletproof glass.

Read the full story here

Largest anti-spam award goes to MySpace, $230 million

Los Angeles-based MySpace.com won what may be the largest anti-spam award, $230 million, the Associated Press reported.

A federal judge in Los Angeles ruled Sanford Wallace and Walter Rines when the two, accused of sending 730,000 messages to MySpace members, failed to show up to a court hearing. The 2003 CAN-SPAM Act give $100 in damages per violation, tripled when done willfully and knowingly, the AP reported.

The AP story notes that Internet service providers have struggled to collect such awards.

Calif. Supreme Court overturns three prosecutorial recusals

The California Supreme Court overturned three decisions that removed prosecutors because of conflicts on interest on Monday, the Los Angeles Times reported.

The court unanimously decided that an appellate court shouldn't have removed Santa Barbara County prosecutor Ronald Zonen for giving his files on fugitive Jesse James Hollywood, because a trial judge had not found that Zonen endangered Hollywood's right to a fair trial. The court wrote that it reversed the ruling by "the Court of Appeal based on its failure to grant appropriate deference to the trial court’s ruling and based on the presence in the record of evidence sufficient to support the trial court’s conclusion that no disqualifying conflict existed and no unlikelihood of a fair trial had been proven." (Hollywood v. Super. Court)

The court also ruled that Santa Barbara County prosecutor Joyce Dudley, who wrote a novel about a rape case similar to one she was going to prosecute, shouldn't have been removed - finding that an "actual likelihood of unfair treatment, not a subjective perception of impropriety" was necessary. (Haraguchi v. Super. Court)

In the third case, the court overturned the removal of Los Angeles County prosecutor Timothy Hu and other deputies from a child molestation case, finding that advocating to prevent the defense access to an alleged victim's medical and psychological records didn't constitute representing the victim's mother or therapist.  (People v. Super. Ct.).

Presidential candidates softer on Calif. medical marijuana law

The three 2008 U.S. presidential candidates spoken, while campaigning, about changing how the federal government responds to state medical marijuana laws, the San Francisco Chronicle reported.

Sen. Barack Obama (D-Illinois) talks about ending intervention by the federal government and letting states make their own rules on medical marijuana, while Sen. Hillary Clinton (D-New York) said she supports criminal penalties for marijuana but more research should be done on its medical benefits, and that going after suppliers of medical marijuana should be low on the DEA's to do list, the Chronicle reported.

Sen. John McCain (R-Arizona) has voiced different opinions at different campaigns stops - saying that he'd let states decide and that he endorses current policy of federal raids and prosecutions, the Chronicle reported.

Ethics commission alleges Aguirre asked city employees for campaign contributions

The San Diego Ethics Commission alleged that City Attorney Mike Aguirre illegally asked city employees to give money to his re-election campaign, the San Diego Union-Tribune reported.

Stephen Kaufman, Aguirre's attorney, claims that Aguirre didn't know that one of his supporters sent an e-mail soliciting funds for the June 3 re-election bid to at least 250 city employees, the Union-Tribune reported.

The Ethics Commission voted unanimously last week to hold a probable cause hearing on July 25.

Voters don't know much about judicial candidates, says legal community

The public arbitrarily decides which judicial candidates to vote for, members of the Los Angeles legal community told the Whittier Daily News. 

Most people make uninformed decisions on who to vote for, Brent Braun, a member of Los Angeles Bar Association committee that rates candidates, told the newspaper.

Some of the challenges include lack of information to voters - it costs $83,000 for a candidate to put a n informational statement on the ballot. Some candidates told the Whittier Daily News that they are, instead, sending mailings to people who consistently show up at the polls.

The challenges to judicial impartiality and accountability that are being discussed at the Commission for Impartial Courts, who are a third of the way through their 18 month mandate to make recommendations for change.

“The manner in which judges are selected, retained, and removed from office can have a serious impact on the independence of the judiciary," California Chief Justice Ronald George, who formed to commission, said in a press release. "It is essential that we make every effort to avoid politicizing the judiciary so that public confidence in the quality, impartiality, and accountability of judges is protected and maintained."

Gemstar CEO charged with destroying documents

Henry C. Yuen, the former chairman and chief executive of Gemstar-TV Guide International Inc., was indicted on Tuesday on a felony charge of obstructing a Securities & Exchange Commission investigation.

According to the new charges, brought by federal prosecutors in the Central District of California, Yuen allegedly deleted e-mails and Gemstar corporate documents that were requested as part of a subpoena in the SEC investigation. The SEC had been looking into accounting irregularities at Gemstar from 1999 through 2002.

The day he was scheduled to testify before the SEC, in March 2003, Yuen used a software program to block efforts to recover those e-mails and documents.

He faces a maximum of five years in federal prison.

Yuen’s whereabouts are unknown, according to prosecutors.

In 2006, U.S. District Judge John Walter, for the Central District of California, rejected a plea agreement between federal prosecutors and Yuen to settle previous charges alleging similar facts. Walter and the SEC criticized that agreement, in which Yuen would have faced no prison time, as too lenient.

In March, a federal judge in the Central District of California ruled that a $29.5 million severance package previous frozen by the SEC under a provision of the Sarbanes-Oxley Act during its investigation be returned to the company.

-- Amanda Bronstad

Labor attorney James Michalski joins Jackson Lewis

Labor and employment lawyer James Michalski joined Jackson Lewis' Los Angeles office as a partner.

Michalski joined the firm in mid-April, leaving Epstein Becker, where he was a partner, the Metropolitan News Enterprise reported.

He works on cases involving employment discrimination, harassment, misappropriation of trade secrets, unfair competition and breach of contract.

Michalski also teaches employment law at the University of Phoenix and has been a volunteer attorney and volunteer for the L.A. Domestic Violence Project and American Red Cross.

L.A. Judge David Mintz dies from lung cancer

Los Angeles Superior Court Judge David Mintz died from lung cancer on Monday, the Metropolitan News Enterprise reported.

Mintz was 40 years old when he was elected to the seat in 2000.

As a law professor at Pepperdine University, he taught legal seminars for prosecutors, lawyers and police officers and wrote about criminal law. Mintz also spent 15 years working at the District Attorney's Office, serving as deputy-in-charge of the Real Estate Fraud Unit.