Metropolitan News-Enterprise


Thursday, May 20, 2004


Page 3


State High Court Denies Bid to Lift Michael Jackson Case Gag Order


By a MetNews Staff Writer


The California Supreme Court yesterday left in place a gag order that largely bars attorneys and potential witnesses in the Michael Jackson child molestation case from talking to the press and public.

Justices, at the weekly court conference in San Francisco, voted 6-0 not to hear a petition by news media organizations—supported by Jackson—for review of Santa Barbara Superior Court Judge Rodney Melville’s order. Chief Justice Ronald M. George recused himself.

A similar petition was summarily denied last month by Div. Six of this district’s Court of Appeal.

The petitioners, represented by Gibson, Dunn & Crutcher’s Theodore Boutrous Jr., argued the order was an unconstitutional prior restraint on the freedom of speech of “third parties who have not yet appeared before the trial court or otherwise become subject to the court’s jurisdiction.”

The gag order, which applies to anyone who might be called as a witness even if they haven’t been subpoenaed, will “deprive the public of accurate information from those who know most about the case” and “definitely violates the First Amendment,” Boutrous told the MetNews.

The attorney explained that while the order does instruct attorneys to send letters to potential witnesses advising them of the order, it is conceivable that persons who haven’t received such letters but have knowledge of the order might fear sanctions for speaking about the case, producing an unconstitutional “chilling effect.”

Boutrous said his clients would be reviewing their options, including a possible petition to the U.S. Supreme Court, which could be filed “very quickly.”

Prosecutors said in their response to the petition that the news media was pandering to a “gossip-hungry” audience, and that the gag order is necessary to maintain an untainted pool of potential jurors.

“What is reported as ‘fact’ becomes the nucleus of intense speculation, conjecture and discussion among commentators, particularly in the tabloid media, and the audience they appeal to,” District Attorney Thomas Sneddon and Deputy District Attorney Gerald Franklin told the high court in their filing.

In other actions at yesterday’s conference, the justices:

Left standing a ruling by Div. One of this district’s Court of Appeal, reinstating a suit against the District Attorney’s Office by Deputy District Attorney Denise Moehlman.

No justice voted to grant review in Moehlman  v. Los Angeles County, B156856.

Moehlman, who finished third in the March balloting for district attorney, alleges she was denied promotion in retaliation for complaints of sexual harassment and religious discrimination.

Justice Miriam Vogel, in an unpublished opinion for Div. One, said retired Los Angeles Superior Court Judge Robert Parkin, who heard the case on assignment, erred in granting the county’s motion for nonsuit.

The Court of Appeal’s opinion came down just two days after Moehlman polled nine percent of the vote in her bid to oust District Attorney Steve Cooley, who was not yet in office when the events leading to the lawsuit occurred. Moehlman trailed former Los Angeles Councilman Nick Pacheco, who received 15 percent, and Cooley, who was returned to office with 59 percent.

Moehlman alleged in her complaint that she was harassed for more than two years in the early 1990s by a colleague, who is no longer with the office. When she asked for reassignment in order to get away from the unpleasantness, she said, she was “punished” for “speaking out.”

In granting nonsuit, Parkin cited Government Code Sec. 815.2(b), which holds that absent a specific provision to the contrary, a public entity is immune from liability “for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

Moehlman had originally sued several individuals, but those defendants were dismissed on summary judgment, based on findings of immunity, and the Court of Appeal affirmed two years ago in an unpublished opinion

Parkin not only granted the county’s motion for nonsuit, he said the suit was frivolous and ordered Moehlman to pay $111,462 in attorney fees and over $15,000 in costs. Parkin was quoted in a newspaper report as saying Moehlman  had “made a sham of the proceedings” in the trial and had wasted the time of high officials, including the former district attorney, Gil Garcetti.

Moehlman said she was offered a settlement in which the county would have waived the fees and costs in exchange for her dropping her appeal and resigning from the office.

Vogel, writing for the Court of Appeal, said the motion for nonsuit should have been denied.

The immunity statute, the justice explained, does not apply to cases in which the plaintiff’s theory is one of direct, rather than vicarious, liability. California Supreme Court authority, she said, makes it clear that a public entity has direct liability for sexual harassment under the Fair Employment and Housing Act.

Vogel also rejected the county’s alternative theory that the nonsuit could have been properly granted on the ground of insufficient evidence. The justice noted that sufficiency of the evidence was raised but never argued, and said there was in any event sufficient evidence for a reasonable jury to conclude that Moehlman was the victim of retaliation.

Declined to review a ruling that Los Angeles District Attorney’s Office investigators who cash out their accrued vacation time after retiring due to disability are not entitled to have those funds calculated as salary for pension purposes.

No justice voted for review of the Feb. 11 ruling in Los Angeles County Professional Peace Officers’ Association v. County of Los Angeles, B163710. The case was decided by this district’s Div. Eight, which sided with the county and the Los Angeles County Employees’ Retirement Association in rejecting claims by the union representing the investigators.

The Los Angeles County Professional Peace Officers’ Association argued that refusing to credit the unused time violated a state law permitting public safety officers injured in the line of duty to take a leave of absence “without loss of salary” for up to one year in lieu of workers’ compensation benefits. They also claimed that it violated the equal protection clauses of the state and federal constitutions.

The claim was brought on behalf of retired investigators William Kupper and Bennie Layne, who left their jobs in 2000 after it was determined that their work-related disabilities had become permanent.

County ordinances allow certain employees, including district attorney investigators, to accumulate up to 320 hours of vacation time. If an employee has more than 320 hours accrued at the end of a year, the excess is cashed out at his or her pay rate, and the amount of the cash-out is treated as salary for pension purposes.

But another provision states that when a public safety employee exercises the right to paid disability leave, none of the vacation carryover provisions apply until a year after the employee returns to work. The county and LACERA have interpreted this to mean that if the employee retires without returning to work, all accrued vacation time will be cashed out but the amount of the cash-out will not be treated as salary for pension purposes.

Nothing in that interpretation is inconsistent with state law or with constitutional principles of equal protection, the Court of Appeal held.

Agreed to decide whether Education Code Sec. 44944—which provides that a credentialed teacher may not be dismissed for misconduct occurring more than four years prior to the issuance of a notice of proposed dismissal—is subject to equitable exceptions such as delayed discovery, fraudulent concealment, estoppel, and continuing course of conduct.

The Fifth District Court of Appeal, ruling in the case of a teacher accused of improper sexual activity with five students, occurring between four and 10 years before the notice of proposed dismissal was issued, held that the statutory time limit was absolute. The case is Atwater Elementary School District v. Department of General Services, F043009.

Agreed to decide whether a protective order under Evidence Code Sec. 1045(e), limiting use of the information disclosed on grant of a Pitchess motion to the proceeding in which the motion was granted, encompasses derivative information, such as statements obtained from witnesses whose names were disclosed pursuant to the motion, and whether such an order prohibits the litigant entitled to discovery from sharing the information with a litigant who has obtained an order for discovery of the same information in an unrelated proceeding.

The Fourth District’s Div. One answered both questions in the negative in Ebbert v. Superior Court, D042600.


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