Wednesday, July 18, 2007
Page 7
PERSPECTIVES (Column)
Did City of Torrance Accord Judge Willett Preferential Treatment?
By ROGER M. GRACE
The answer to the question posed in the headline is yes.
As previously noted...in 1980, newly appointed South Bay Municipal Court Judge William G. Willett and his wife, Gisela Willett, had a 4-foot high fence built in front of their property in the City of Torrance. It was constructed 8 feet into a city right-of-way, but nobody noticed, and the Willetts got by with it. In 2003, they added a 16-foot wide gate that came to nearly 7 feet at the top of its arch. The gate, aside from being on city property, did not conform to the Municipal Code’s height limits. Too, in both 1980 and 2003, the Willetts had neglected to obtain a building permit.
The construction in 2003 was spotted by one Jim Harrigan, who leaves nearby. He made a complaint to the city. On Dec. 15 of that year, the city advised the Willetts that their structures were encroaching on the city right-of-way and could not be maintained there without an encroachment permit.
Week after week passed, no permit was applied for, and the structures remained. One might have supposed that William Willett, formerly Torrance’s city prosecutor and member of the City Attorney’s Office, would be more responsive to legal demands by the city...but he was by then, after all, a Los Angeles Superior Court judge (by virtue of unification).
The city had the power to declare the structures to be nuisances and order their immediate removal. Instead, a second letter was sent to the Willetts on March 15, 2004, again telling them that they could not keep the fence and gate where they were without a permit. Eight days later, an application for a permit was filed by Gisela Willett.
A year and two days after the city sent that second notification, a public hearing was held on the Willetts’ application by the city’s Encroachment Review Committee. Why was the process so drawn-out?
The Willetts—whose home had twice been visited by vandals who pelted it with some sort of objects—were resisting any modifications to what they had in place. Given the experience with the hooligans, and in light of Willett’s occupation, it is understandable that they would be keenly mindful of the need for security.
Nonetheless, it does seem brazen for them to have quibbled with city staff members over mere modifications that the city wanted, such as lowering the gate and hedges to 4 feet, when the city was willing to let them continue to utilize the city’s space. A truism that the Willetts have never surmounted is that a fence and gate on their own property would be as effective protection as a fence and gate eight feet closer to the curb, on a public strip.
William H. Ihrke of Rutan & Tucker, LLP, who is representing the city in connection with a writ proceeding brought by the Willetts, tells me the city “did bend over backwards” to accommodate the Willetts’ concerns “before the administrative review procedures.”
It was because the Willetts could not come to an agreement with staff over the conditions of a permit that the matter formally came before the Encroachment Review Committee. A hearing took place on March 17, 2005… again on April 28 of that year…yet again on June 30.
After the first meeting, if the Willetts had signed an encroachment agreement accepting the conditions, the city would have recorded the document, and, given that neither Harrigan nor anyone else appealed within the 15-day period provided, that would have been that. The Willetts would have been able to continue using the city property on which they had impermissibly constructed a wall and a gate. Instead, they continued to whine; the conditions remained unacceptable. In light of that, two more hearings were held (the second hearing being continued in order to secure input from the city attorney after Willett warned of city liability if harm befell his house or family based on city-compelled diminution of the security).
Multiple hearings on the simple matter of an encroachment permit are surely not the norm. To say that the Willetts were indulged is an understatement. Had a carpenter, a cook at a Pizza Hut, or a car salesman illegally placed structures on city property would there have been prolonged consideration of the trespasser’s objections? I doubt it.
Yes, a judge does have security needs that a carpenter, a cook, or a salesman doesn’t. (I’m certainly not insensitive to judges’ security needs; my daughter is married to a judge.) An electronic hook-up from the home of any judge to a security company would seem wise, along with other measures. But the notion that a judge’s security is reliant on the presence of a wall or other type of fencing in front of his or her residence and an electronically controlled security gate in the center of that wall is absurd. My wife and I have gone to homes of many a judge over the past several years, and I can’t think of any house we’ve been to with a fence and gate.
Is it that the matter of security is an obsession for Willett…or is it that he views as effrontery the city’s imposition of any conditions on him?
One of the conditions was the gate, operated by remote control, only open inward. The reasonableness of that is manifest. The city is liable for dangerous conditions on its property—and has been potentially liable since 2003 to any passerby, on foot, bike, or motorized vehicle, who might be bashed by a gate swinging out. While Torrance City Attorney John Fellows III declines to comment on that potential liability, he does acknowledge that so far as he knows, the gate “has not been modified from an outward swing.”
Even if Willett would not lower the height of the wall or gate to conform to city code requirements, it might be thought that, if he were a decent human being, he would jam the gate — as he acknowledged during a committe hearing he could easily do — allow it to swing inward, only obviating the present danger. But Willett is not prone to give an inch while engaged in litigation, and the city, timidly, is not prone to press this point, despite its exposure to liability.
Fellows discloses that “Judge Willett’s new gate plans call for a sliding gate, so there would be no issue about inward or outward swing.” If the pending settlement proposal goes into effect, and Willett does install a non-dangerous sliding gate, it will remain that the city will have tolerated a dangerous condition for about four years simply because the party creating the danger was a judge, whom it feared to reign in.
In a writ petition his lawyer was to file Dec. 21, 2005, which Willett and his wife verified, it is recited:
“On June 30, 2005, the Encroachment Review Committee made its decision to approve Petitioners’ application with certain restrictions.”
On the very day of that decision, Harrigan appealed to the City Council.
In an e-mail of Aug. 19, 2005, Willett said to then-Torrance Mayor Dan Walker, in part:
“My security can be maintained if I am allowed to keep the gate and hedge in their present configuration. Therefore, I am asking that the City Council pass a motion as follows:
“‘THE JUNE 30, 2005 DECISION OF THE ENCROACHMENT REVIEW COMMITTEE IS AFFIRMED WITH THE EXCEPTION THAT THE HEDGE WILL NOT EXCEED SIX FEET HIGH AND THE GATE MAY REMAIN IN ITS PRESENT CONFIGURATION ONLY AS LONG AS THE CURRENT RESIDENTS OWN THE PROPERTY.’”
This cheeky scoundrel was seeking to retain the benefit of the committee decision—being allowed to keep the structures on city property—while eluding the detriment of having to lower the gate and hedges to four feet.
On Sept. 27, 2005, in a 5-0 vote, the council granted the appeal and denied the permit. It was apparently persuaded by Harrigan that no real security needs were implicated and the Willetts merely wanted to add to the dimensions of their front yard.
The following week, the Willetts were ordered to “remove all structures from the public right-of-way” within 30 days.
Thirty days later, the structures had not been removed.
It cannot be questioned that the city had a right to order removal of trespassing structures on city turf, and that the Willetts had no lawful basis for resisting. But resist they did.
Willett was a judge; perhaps he thought that gave him immunity.
His writ petition was filed Dec. 21, 2005. That filing did not stay the city’s order. The judge remains in disobedience of the law…and of Canon 2A of the Code of Judicial Ethics which provides that “[a] judge shall respect and comply with the law....”
The city had the option of prosecuting Willett and his wife criminally. That would, Ihrke acknowledges, have been the normal course. But the fact that Willett is a judge, he says, caused the litigation to take on an “added dimension.”
In an interview with the Torrance Daily Breeze, published May 29, Fellows is quoted as saying:
“The City of Torrance is both a plaintiff and a defendant in the Torrance Superior Court and on a regular basis and doesn’t want to do anything to antagonize any judge. We need to have good relations with all sitting judges.”
The term for such a posture on the part of a governmental entity is “favoritism.”
Fellows’s statement to the Breeze implies that Willett is still hearing matters to which the City of Torrance is a party, notwithstanding that he is embroiled in litigation with the city. In response to my inquiry as to whether this is so, Fellows responds:
“So far as I am aware, Judge Willett has recused himself from handling any Torrance civil or criminal matters since the filing of his action.”
Due respect must be accorded a judge within the confines of a courtroom. That’s necessary for sake of orderliness of proceedings, for sake of recognition of the majesty of the law…of which the judge is the symbol and the guardian.
A local rule prohibits addressing that judicial officer as “Judge.” That’s too informal; he or she is to be regarded while on the bench not as a person, but as the “the court,” an institution.
Outside the courtroom, judges are often accorded deference. There are, of course, sycophantic lawyers who will disingenuously fawn over them in hopes of winning their favor…but aside from that, many citizens, including lawyers whose esteem is genuine, will evince, by their conduct, reverence for a judge’s position. Members of the Los Angeles Superior Court do enjoy a lofty station.
But government, at any level, may not extend to a judge, in his or her private capacity, special favors. There’s a principle that’s venerated in this nation precluding such favored treatment: equality under the law.
The City of Torrance has, to its discredit, run afoul of that precept. It has, unabashedly, preferentially dealt with Willett, a resident who broke the law, and who continues to defy it by maintaining structures he knows to be trespassing on city property.
A judge should know better than to accept special treatment from government, let alone to covet it.
SIDENOTE: Willett’s lawyers contended in their written motion for a writ, heard last Feb. 5 in Orange Superior Court, that the Encroachment Review Committee did not actually make its decision on June 30, 2005. Rather, it had made a decision on March 17; there was no appeal within the 15 days allotted; the decision therefore became final April 1, and the committee therefore had no further jurisdiction in the matter, rendering the appeal to the City Council unauthorized and the council’s decision a nullity.
The argument, put forth by successor counsel to the lawyer who drafted the petition, was clever, but inconsonant with the facts.
Following the initial hearing on St. Patrick’s Day (March 17), 2005, Willett continued negotiating, and wanted further attention to his objection to the conditions. He and his wife did not execute an encroachment agreement; no permit was issued. The matter remained in flux. No statute or ordinance barred continued consideration after 15 days. Willett’s bellyaching and clamoring are what led to the April 28 hearing.
In a declaration under penalty of perjury he presented at that hearing, Willett said: “By this declaration I am requesting that the [committee] reconsider its prior action and grant a temporary encroachment permit that will allow me to maintain my present security measures.”
At the hearing, he expressed his thanks that he was given the opportunity to provide further input.
By virtue of Willett keeping the matter alive, a second hearing was held April 28, and a third hearing took place June 30, 2005. Harrigan appeared at that third hearing to testify, and then appealed from the outcome...that is, from a decision granting the permit on virtually the same conditions as before.
If Harrigan had appealed June 30 from the March 17 decision, the appeal would have been tardy. Instead, he appealed on June 30 from a June 30 decision, a hearing having been held that day by virtue of Willett’s own doing.
As noted above, the writ petition, filed Dec. 21, 2005, was sworn to by Willett under the penalty of perjury. It declared that the committee “made its decision” on June 30.
At the hearing in Orange County last Feb. 1, a highly befuddled Superior Court judge there, Geoffrey T. Glass, considered arguments on the supposed jurisdictional issue, notwithstanding that the petition had never been amended to set forth that the true decision was made March 17.
The fumbling Glass took the matter under submission. Weeks passed...more weeks. The parties finally asked the dallying jurist to hold off, they renewed negotiations, and reached a tentative settlement, which entails the Willetts moving the wall and gate onto their own property and observing restrictions.
The moral is: you can’t fight City Hall even if you’re a judge...especially when you’re in the wrong.
Copyright 2007, Metropolitan News Company