Monday, July 16, 2007
Was a Judge Entitled to TV Blackout of City Council Testimony?
By ROGER M. GRACE
The Los Angeles Superior Court case of Willett v. City of Torrance, unnoticed except by a South Bay newspaper, appears to be headed for settlement, but meaty questions raised in connection with that litigation linger. Chief among them is how much secrecy a judge should be afforded when vindicating personal interests in public proceedings.
Questions also loom as to the seemliness of a Superior Court judge permitting his counsel to advance sham arguments and how a case involving a permit for a wall and a gate could have wound up costing taxpayers in the City of Torrance around $200,000 in legal fees.
A plaintiff in the case is one William G. Willett, appointed to the South Bay Municipal Court in 1980 by Gov. Jerry Brown. The Marshal’s Office is said to have advised the new judge to have a security wall constructed in front of his home, which he did—apparently oblivious to the need to obtain a building permit before doing so, and purportedly without an awareness that the wall was encroaching on city property by eight feet.
(Willett was elevated to the Superior Court in 2000 by virtue of unification but is still doing Municipal Court-type work, stationed at the courthouse at the Redondo Beach Pier.)
In 2003, after receiving some threats to his safety, Willett had a security gate added to the wall. It’s 16 feet wide and is 7 feet high at its crest. The gate is not in compliance with the city’s code, aside from the fact that the Willetts had failed to obtain a permit to install it.
The erection of the gate triggered a complaint to the city from a neighbor, Jim Harrigan, head of a local homeowners’ association. The city responded by advising Willett that he needed an encroachment permit. So, his wife applied for one, and the responsible city agency granted it, with some provisos: lowering the gate to 5 feet, rigging it so it would only swing inward, removing screening on it, and lowering some hedges.
Harrigan appealed to the City Council, which set the matter for a public hearing on Sept. 27, 2005, during its weekly session.
Citing security concerns, Willett implored the city in advance of that hearing not to televise it. That would have meant a blackout during the live broadcast on the local government access channel, CitiCABLE, and during the simultaneous webcast of the council meeting on the city’s Internet site.
Although this would not have violated the Brown Act nor been akin to holding a session behind closed doors—because, indeed, the doors to the Council Chamber would be open during the meeting—it surely would have constituted highly preferential treatment for the judge. It would have reduced drastically that degree of openness of proceedings which had become a matter of practice and policy.
Willett’s request, had it been honored, would also have entailed snipping the public hearing from the videotape that would be rebroadcast on the cable channel and from the streaming video file that would be viewable on, and downloadable from, the city’s website.
The city, with obvious justification, spurned Willett’s plea for a blackout. It did, however, agree to the judge’s request that his name, and that of his wife, Gisela, would not be mentioned during the hearing—they would merely be referred to as the “owners of the property” at such-and-such address—and that Willett’s occupation would not be disclosed.
At the hearing, Ted Semaan, director of the city’s Community Development Department, presented the staff report on the issue, noting: “I’ve…received a request from the property to remain anonymous….”
Nonetheless, Harrigan declared during remarks before the council:
“The homeowner’s stated employment position as a Superior Court judge doesn’t make him exempt from the law. It should make him more respectful of the law.”
The address of the property had been mentioned during the hearing and, in fact, appeared on the screen during the broadcast. That made sense since the permit did relate to construction at that address, and seemingly there would have been no detriment to the Willetts owing to the intent that the address not be connected to them.
But Harrigan upset the plan.
Apparently admonished beforehand by city staff members not to allude to Willett’s position as a judge, it remains that Harrigan was not a party to any agreement between Willett and the city, and his right to address the council surely could not have been conditioned on his assent to restrictions on his speech not generally imposed on a protester.
Harrigan, in well constructed remarks, asserted that Willett had “promoted his selfish interests by taking what was not his to take”—that is, an 8-foot strip in front of his property—simply for the purpose of enlarging the estate, and without any actual security need. Indeed, it was obvious that the wall and the gate would be just as effective if erected on the Willetts’ own property.
Councilmember Hope Witkowsky had apparently intended to follow the staff’s recommendation to deny Harrigan’s appeal, but now had different thoughts.
“It was my understanding this was a security issue,” she said, going on to observe:
“If it was a security issue three years ago, they [the Willetts] could have gone through the proper procedures for a fence on their property. I think it sends a terrible message to a community two or three years later to encourage this type of encroachment.”
With Councilmember Paul Nowatka recusing himself in light of a 30-year friendship with Willett, there was a 5-0 vote to grant the appeal and deny the encroachment permit. That meant the Willetts would need to move the wall and gate to their own property, after obtaining the necessary construction permits.
William and Gisele Willett, along with their family trust, filed an action in administrative mandamus in the Los Angeles Superior Court on Dec. 21, 2005. In the same action, they sought damages based on their address being posted on the city’s Internet site.
The petition, drafted by the Willetts’ lawyer at that time, Makiko L. Meyers, basically contains three bases for writ relief: bias on the part of City Council members (a ground subsequently abandoned); the City Council’s lack of jurisdiction to order the Willetts to remove planters inasmuch as the planters had not been the subject of any action below (the council issued no orders to the Willetts); and the city’s refusal to black out the hearing.
With respect to the latter ground, Meyers wrote:
“Respondents failed to grant Petitioners a fair trial by denying Petitioners’ reasonable request to not have the permit appeal agenda item broadcast on television and thereby prevented Petitioners from testifying before the City Council.”
Due process required an opportunity for the Willetts to be heard. That opportunity was afforded when then-Mayor Dan Walker asked, after Harrigan testified: “Would anyone else care to be heard?”
No facts are shown substantiating the assertion that the city, by televising the proceeding, “prevented” William G. Willett from testifying. He could have gone up to the mike and spoken.
The underlying proposition that the televising of the hearing constituted a de facto bar to Willett telling his side of the story, in light of security considerations, is preposterous. There were obviously approaches short of a blackout that could have been taken to avoid the prospect that someone in the TV audience—such as a person Willett had sentenced—would link the judge’s face and home address, creating a peril. Willett could have been photographed only from the rear. The council could have deferred action until the next weekly meeting to enable Willett to respond to comments at the hearing in the form of a declaration. But neither accommodation was requested by Willett. Instead, he took the absolutist stance that if the city televised the hearing, he couldn’t speak, thus invalidating any action adverse to him based on a lack of opportunity to be heard.
The writ petition alleges that the televising “prevented Petitioners”—plural—from testifying. There are no facts stated even hinting at why Gisela Willett was “prevented” from speaking.
Victor J. Otten of the Long Beach firm of Trutanich • Michel, which now represents the Willetts, tells me that the hearing was originally set for August, 2005 but Harrigan “made a big stink about it,” claiming lack of adequate notice, and the matter was re-set for Sept. 27. On that date, he says, Gisela Willett “was out of town on a pre-planned trip.”
Yet, there is no allegation in the pleading that a continuance was sought so that she could testify, and that a continuance was denied. It would appear that Gisela Willett playing the role of family spokesperson was not contemplated.
And surely an attorney could have represented the Willetts at the hearing with no jeopardy to the clients’ security.
In short, the petition fails to present facts giving rise to a duty to the Willetts on the part of the city not to televise the hearing.
In a “Motion for Peremptory Writ of Administrative Mandate,” authored by Otten, a mighty effort is made to convey that Willett would have testified but was precluded from doing so once Harrigan identified him as a judge (as well as mentioning some areas of the Willett house that were vulnerable to a break-in).
“...Judge Willett was figuratively ambushed by Mr. Harrigan’s inappropriate comments, thus precluding a reasonable opportunity to respond,” Otten said.
In the reply to the opposition, Scott M. Franklin of Trutanich • Michel wrote:
“Mr. Harrigan’s statements were completely unexpected and they required Judge Willett to make an immediate decision: stay and appear on television (with Mr. Harrigan’s comments fresh in viewers’ minds), thus incurring a substantial increase in the threat to his family and home, or leave and not be heard. Respondents’ claim that the Judge could have requested a continuance makes little sense; if the Judge feared for his safety and immediately left the meeting, when could he have made such a request?...No doubt, this was an unusual situation, but it did prevent Judge Willett from being heard; thus due process was violated.”
Carmen Trutanich, a name partner in the firm representing the Willetts, tells me that as he sees it, once Harrigan disclosed Willett’s occupation, the city attorney, John L. Fellows III, “should have called a recess and asked Judge Willett, ‘What should we do here?’ ”
The flaw with that is that Fellows says he wasn’t aware that Willett was present and, in any event, didn’t know he intended to testify.
The contention that Willett was prejudiced by Harrigan’s disclosure and that some new duty on the part of the city thereupon sprang into existence is not pled...and contradicts the premise of the petition: that Willett was precluded from testifying because the proceeding was televised.
Indeed, in an e-mail to the then-mayor dispatched on Aug. 19, 2005, Willett said:
“The Sheriff’s Judicial Protection Unit has told me that it is extremely important that my home address and identity as a judge not be disclosed to the public via television broadcast. For this reason I should not address the City Council in front of any television camera. Hopefully this will not be an issue because at the April 28th and June 30th Encroachment Review Committee meetings I submitted a written declaration and letter fully explaining and justifying the need for my home security measures. The city council has these documents since they were included in the minutes.”
(Even though Willett had not appealed the conditions placed upon his encroachment permit, he proceeded to ask that the City Council remove them.)
It follows that if Willett was not intending to testify, he could not possibly have been prejudiced by Harrigan’s conduct—and the contention concocted by his inventive and spirited new lawyers is a red herring.
While a judge has the same rights as any other citizen to pursue litigation to vindicate personal rights, it would seem that a judge does have an especial obligation not to maintain frivolous litigation or sully it with disingenuous arguments.
Here, Willett verified a petition which said that he had “requested that the agenda item dealing with the appeal not be broadcast so that he could appear at the hearing and make statements before the City Council Members” and that the televising “prevented” him and his wife from testifying.
Notwithstanding having made those statements under penalty of perjury, Willett executed a contradictory declaration under penalty of perjury on Jan. 11, 2007, in furtherance of his new counsels’ premise that it was Harrigan’s comments that deterred him from testifying. Willett said in the declaration:
“I was present during the City Council meeting on September 27, 2005. After Mr. Harrigan identified me as a judge I felt I could not appear before the City Council to rebutt [sic] his comments or some of the misstatements made by Mr. Semaan.”
It’s by no means clear that the new basis for ascribing a duty to the city is any less frivolous than the original one. What is telling is that Willett appears perfectly willing to swear to such facts as will substantiate the theory of whatever lawyers are presently representing him.
It is, of course, conceivable that Willett intended not to testify; changed his mind during the hearing, deciding that an urgent necessity to clarify some points now overrode his need for security; then changed his mind yet again in light of Harrigan’s disclosures. But that isn’t in the writ petition nor in the Jan. 11 declaration.
In an e-mail to Trutanich, Otten and Willett on July 11, I queried: “Would Judge Willett have testified had Jim Harrigan not revealed that he is a judge?”
Later that day, Otten responded to the question by phone, saying: “I don’t know.” He said he would ask the judge. So far, there’s no response.
In my next column, I’ll look at other aspects of the litigation, including a matter brought to light by the Daily Breeze: $200,000 in costs of outside legal representation being incurred in the case by the City of Torrance.
Copyright 2007, Metropolitan News Company