Former Judge Had Duty to Disclose Censure

Friday, July 11, 2008

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Former Judge Had Duty to Disclose Censure—C.A.

By STEVEN M. ELLIS, Staff Writer

A retired Los Angeles Superior Court judge had a duty to disclose his censure for making offensive comments about women based on their physical attributes before arbitrating a medical malpractice claim centering on a woman’s appearance, this district’s Court of Appeal held yesterday.

In an opinion by Justice Sandy Kriegler, Div. Five held 2-1 that Los Angeles Superior Court Judge Allan Goodman correctly vacated an arbitration award in favor of a cosmetic surgeon in which former Judge Norman Gordon cast the deciding vote because the censure could have caused a person to reasonably entertain a doubt that Gordon would be able to be impartial.

However, Justice Richard M. Mosk sharply criticized the decision, saying that it would undermine the institution of arbitration by allowing the losers of “binding” arbitration to vacate awards so long as they could find some fact that an undefined “average person” might say indicated bias. He also predicted the decision would significantly expand the circumstances in which judges must be disqualified from hearing cases.

Beverly Hills cosmetic surgeon Randal Haworth performed an elective cosmetic procedure on Susan Ossakow’s lips in 2003, his fifth cosmetic procedure on Ossakow’s face.

Medical Malpractice

However, after the surgery, Ossakow sued Haworth for medical malpractice and battery, accusing Haworth of going beyond the agreed upon procedure and altering her nose and its underlying musculature without her consent.

The parties stipulated to send the matter to arbitration by a panel of three arbitrators, consisting of one selected by each party and one “neutral” arbitrator, and Haworth proposed a list of four names to serve as the neutral—including Gordon—after selecting his own.

Ossakow’s counsel agreed to appointing Gordon, and contacted the former judge to gauge his willingness to serve, requesting that he send along “any other pertinent information.”

Gordon accepted, and enclosed a “Disclosure” stating that he had been involved in legal proceedings with members of defense counsel’s law firm, but otherwise had nothing to disclose.

Arbitration proceedings went forward on the medical malpractice claim after Haworth won summary judgment on the battery claim. But the panel—with Ossakow’s arbitrator dissenting—found that Ossakow failed to prove the procedures were performed without consent, or that Haworth’s performance fell below the relevant standard of care.

Testimony Dismissed

The majority said Ossakow was not credible because her symptoms were more severe in her testimony than in her statements to doctors, and noted her numerous previous facial surgeries.

“One thing probably everyone can agree upon, after five facial surgeries, [Ossakow] could have done without a sixth one,” they noted.

Ossakow then discovered that Gordon been censured by the California Supreme Court the year prior to his 1997 retirement from the bench for making sexually explicit remarks, ethnic slurs, and derogatory comments to or about his female employees and colleagues based on their physical attributes.

Although the censure indicated that Gordon made the remarks in an “ostensibly joking manner” without any improper intent, and had not done so while on the bench, Ossakow moved to vacate the award. Contending that Gordon was required to disclose the censure under state law requiring arbitrators to disclose any matter that could cast doubt on their ability to be impartial, she argued that it revealed a bias toward women based on their physical attributes.

Goodman, finding that a reasonable person advised of the censure would entertain a doubt as to Gordon’s impartiality, granted the motion and ordered a new arbitration.

The Court of Appeal initially granted Haworth’s petition to reinstate the award, but later reversed course.

Noting that arbitrators are held to the same standards of bias as judges, and that the question was not whether Gordon had actually been biased, Kriegler concluded that the “average person on the street” would doubt Gordon’s impartiality under the circumstances.

Kriegler similarly rejected Haworth’s argument that the censure was insufficient grounds to adjudicate facts sufficient to show—in Gordon’s case—gender bias.

Noting that the censure was based on findings of fact and conclusions of law by special masters appointed by the Supreme Court, he pointed out that Gordon’s censure has also literally become a textbook example of gender bias that is impermissible in the judiciary, cited both by the Judicial Council in its Guidelines for Judicial Officers, and by Los Angeles Superior Court Judge David M. Rothman in the California Judicial Conduct Handbook.

“As those authorities recognize, there is cause to conclude Judge Gordon’s inappropriate treatment of women constituted bias. By the same token, there is cause for a reasonable person to question whether Judge Gordon could serve as an impartial neutral arbitrator in this case.”

Presiding Justice Paul Turner joined Kriegler in his opinion.

However, Mosk disagreed with the majority, writing that its conclusion that Gordon’s conduct could give rise to reasonable concerns of bias “defies logic.”

“There is nothing in the Supreme Court’s opinion that states or implies that Judge Gordon engaged in any misconduct or impropriety with respect to any litigant, male or female,” he said. “There is certainly nothing in the Supreme Court’s opinion that states or implies that Judge Gordon was (or is) such a staunch misogynist that he was (or is) incapable of impartial decision making in any case involving a woman or her appearance.”

Mosk said instead that the court would do better to require counsel to exercise more due diligence in choosing an arbitrator.

Noting that the first two entries displayed when the words “judge norman gordon” are entered into the Internet search engine Google.com clearly display the censure, he wrote:

“I would think it preferable to require counsel to type three words into Google rather than force the parties to endure the time and expense of a pointless arbitration proceeding.”

Ossakow’s counsel before the arbitration panel, attorney Jeffrey S. Mitchell of Bostwick & Associates in San Francisco, told the MetNews that the Court of Appeal had reached the correct decision.

Remarking that, “it’s not just sour grapes,” Mitchell said that Gordon had been “flippant” at the arbitration hearing, and that he had felt that the former judge “didn’t care one iota from the minute I opened my mouth.”

Counsel for Haworth could not be reached for comment, but Mitchell said that he had been advised that Haworth would likely seek review by the California Supreme Court.

The case is Haworth v. Superior Court (Ossakow), B204354.