Metropolitan News-Enterprise


Thursday, September 1, 2005


Page 1


C.A. Rejects Judicial Bias Claim, Upholds Discrimination Award


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Fifth District Court of Appeal yesterday affirmed an award of more than $1.25 million to three white men for racial discrimination they endured while employed with the police department at California State University, Fresno.

In an opinion by Justice Steven Vartabedian, the court rejected the university’s claim that there was insufficient evidence to support the plaintiffs’ claims that they were discriminated against because of their race.

The court, however, also concluded that Fresno Superior Court Judge Donald Black did not abuse his discretion in cutting the original award of $4.25 million. The trial judge reasonably concluded that the jury inflated both the economic and noneconomic components of the plaintiffs’ damages, Vartabedian said.

The justice also rejected the plaintiffs’ claim that the remittitur, and the court’s order granting $1.23 million in attorney fees rather than the $3.3 million sought by counsel, were tainted by a conflict of interest or actual bias in favor of the defendants, who were represented by the law firm at which he worked before becoming a judge and at which his wife worked at the time of the case.

The plaintiffs failed to prove actual bias, and waived the conflict by not objecting after it was disclosed, the justice said.

Steven King—once the No. 2 official in the department and the acting chief before Willie Shell took over—Daniel Horsford and Richard Snow each were awarded $1.2 million or more for the preferential treatment they claimed the university gave to African Americans over whites under Shell, an African American who served as chief of the university police from August 1994 until he retired April 1, 1997.

Plaintiffs’ Claims

The plaintiffs said they were demoted within the department, forced out of the department and moved to other jobs with lower pay levels. The plaintiffs also contended they were harassed and faced retaliation for blowing the whistle on Shell, who they said violated regulations by illegally running criminal computer checks on unauthorized individuals.

In a motion for new trial, which was denied, the plaintiffs’ attorneys claimed they had been “coerced” into waiving Black’s conflict of interest. The judge first disclosed his past employment, and his wife’s current employment, to all counsel in December 1999, when he first got the case, and advised the attorneys before trial, in June 2000, that he had learned that his former firm was representing CSU in a federal court gender discrimination case.

 More than two years later, attorneys filed a declaration saying they had just identified another case in which the firm was representing the university, in Fresno Superior Court. They also said they had reviewed the docket sheet for the federal case, and discovered that the judge’s wife, Deborah Ann Byron, had participated in the case up until Dec. 21, 1998—about a year before Black got the case ruled on yesterday.

Black responded that he had not “run a ‘conflicts check’” at the time he got the case because he had “no means to do so,” but had disclosed his and his wife’s relationships with the law firm.

Black defended his handling of the case, but recused himself from any future proceedings.

Arguments ‘Unconvincing’

Vartabedian said the arguments—that the waivers were ineffective because they were coerced, because they were not given in writing, and because the disclosure was incomplete—were “unconvincing” and “miss the point of the waiver at issue here: regardless of whether the plaintiffs effectively waived the conflict in 2000, we conclude they waived the conflict by the long period of inaction during which they should have discovered the details of which they now complain.”

He added that “while Judge Black initially had (and failed to perform) the duty to determine whether he had conflicts, once plaintiffs were provided with information sufficient to permit inquiry, they had a duty to exercise reasonable diligence to determine the facts and act upon them; in failing to exercise such diligence, they waived disqualifications that reasonably would have been disclosed.”

While rejecting the contention that the alleged conflict of interest affected the fee award, the court did say the trial judge should have considered a fee multiplier, as well as a higher rate for the plaintiffs’ San Francisco counsel--whom plaintiffs said they had to hire because local attorneys did not want to take on the university, a popular local institution--and sent the case back to the Superior Court for a possible increase in the award.

The case is Horsford v. Board of Trustees of California State University, F037477.


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