Wednesday, August 5, 2009
Page 7
PERSPECTIVES (Column)
Van de Kamp as AG: Sues to Protect Consumers; Disapproves Nicholson
By ROGER M. GRACE
Ninety-Sixth in a Series
JOHN VAN DE KAMP made an easy transition from his job as district attorney of Los Angeles County to that of the state’s attorney general, a post he held from 1983-91.
One difference in the two posts was that he now had an office in more than one city. He worked here—in space then being rented for the state appellate courts and the Department of Justice in a high-rise on Wilshire Boulevard, a few blocks east of Western Avenue—as well as in San Francisco, Sacramento, and San Diego.
The Nov. 23, 1983 issue of the METNEWS contains a profile on Van de Kamp which quotes Barbara Yanov Johnson, his special assistant in the AG’s Office, just as she had been his special assistant in the DA’s Office, as saying that her boss was “working harder, if possible, because of all the travel involved.
The quote continues that “he seems to thrive on it.”
A significant change was in the size of the law office he now headed. It had nearly 500 attorneys in it—and 1,500 non-lawyers.
Another difference was that he now handled civil matters, as well as criminal. He was the lawyer for state agencies. The 1983 article relates that the AG said:
“Frankly, one of the reasons that I decided to run for attorney general was that in terms of breadth and scope, this office is a fascinating one for any lawyer because you’re dealing with a wide range of civil issues—the client issues that affect state government—as well as the criminal issues that I have pretty much grown up with.”
Van de Kamp’s office rendered advisory opinions. One is described in this May 12, 1986 Dan Walters column:
“The years-long debate over job protection rights for homosexuals took a new turn when Attorney General John Van de Kamp ruled that discrimination is illegal under present law. [¶] Unless overturned by a court, Van de Kamp’s opinion accomplishes much of what gay rights groups had been trying to do through legislation.”
The attorney general brought lawsuits. In his first year, Van de Kamp joined in federal actions to force cleanups of toxic waste sites and sued on behalf of the California Coastal Commission to block the leasing of 900,000 acres for offshore oil drilling.
In the years ahead, Van de Kamp was not shy about suing. His adversary in the 1982 Democratic primary for attorney general, then-state Sen. Omer Rains of Ventura, now comments: “He certainly did give more than lip service to consumer protection and environmental protection.”
For example, Van de Kamp in 1986 secured a permanent injunction, pursuant to a stipulation, against false claims by Herbalife…such as “[r]epresenting that one who uses defendants’ products will lose weight without a reduction in the user’s caloric intake.” Herbalife was ordered to pay the state $850,000 “as and for reimbursement to plaintiffs for costs, attorneys fees, expenses of investigation and other expenses.”
In 1987, Van de Kamp obtained a ruling by the U.S. Supreme Court that a California Coastal Commission permit requirement was not preempted by federal law.
Van de Kamp sued to block the merger of the Lucky and the Alpha Beta supermarket chains, contending the result would be reduced competition and higher grocery prices. A settlement was reached in 1990 after the U.S. Supreme Court confirmed California’s power to pursue the litigation even though the purchase of the Lucky stores had been completed in 1988. It was agreed that American Stores, which owned the two erstwhile rivals, would convert 14 Alpha Beta markets into Lucky markets, but would sell 152 of its 175 Alpha Beta outlets in Southern California, as well as nine Lucky stores, within five years. American Stores was to pay the state $550,000 for its costs.
In the criminal area, the AG sought changes. One was that he wanted DNA tests to be admitted into evidence. A Jan. 25, 1989 article in the Los Angeles Times quotes him as telling the California District Attorneys’ Assn. the previous day at a meeting in Palm Springs:
“One year ago this month, I stood before a room full of police and prosecutors who were eager to use DNA technology to convict murderers, rapists and other violent criminals. They were waiting for a green light. But I had to give them a stop sign instead.”
New types of scientific evidence are only admissible if they have gained general acceptance in the scientific community. He said that “if we rushed to trial with DNA-typing evidence, only to have it thrown out of court, we could lose this revolutionary new tool for years to come.”
In light of progress within the last year, he said, “a new era of crime fighting will begin in California….I am ready to announce that DNA is ready to go to court and ready to win.”
An April 8, 1989 Copley News Service article in the San Diego Union tells of an alternative offensive by Van de Kamp in the legislative arena, saying:
“Attorney General John Van de Kamp yesterday pushed for legislation that would allow the state to take blood samples from violent offenders and computerize the genetic data for future use in criminal investigations and court cases.
“Defense attorneys and civil libertarians challenged the use and reliability of DNA typing, which reads a person’s genetic characteristics like a bar code on a cereal box.”
Privacy concerns and fears that the evidence would lead to wrongful convictions—rather than being the tool for exoneration that it has become—rendered the proposed legislation controversial, and it failed. Van de Kamp did, however, succeed in getting a DNA laboratory established in Berkeley.
It was not until June 9, 1999, that DNA evidence was judicially decreed to be admissible in California. Div. Three of this district’s Court of Appeal, in an opinion by Presiding Justice Joan Dempsey Klein, held that DNA testing had gained general acceptance within the scientific community.
Seeking in other ways to update the criminal justice system, Van de Kamp established the computerized California Fingerprint System and created a central bank of briefs to be used in death sentence cases so that the same research would not have to be undertaken time and time again.
An act of courage by Van Kamp came in 1990. It was in connection with his rival for the attorney general’s post in the 1982 general election, George Nicholson.
Nicholson, the Republican candidate in that 1982 run-off, was an assistant attorney general. The AG was George Deukmejian who, in the same election, won the governorship. In 1983, Deukmejian wanted to appoint Nicholson to the Sacramento Municipal Court—but didn’t, in light of a “not qualified” Nicholson drew from the State Bar Commission on Judicial Nominees Evaluation.
The Sacramento Bee learned of that confidential rating, and reported it in an article by Claire Cooper. The Los Angeles Daily Journal confirmed the dinging, and related it in its own story by Larry Sokoloff. Nicholson brought a lawsuit against the State Bar, the McClatchy Newspapers (publisher of the Bee), Cooper, the Daily Journal Company, and Sokoloff. He alleged that they had formed a conspiracy, invaded his privacy, and caused him emotional distress.
Sacramento Superior Court Judge Roger K. Warren sustained demurrers without leave to amend to the causes of action against the media defendants, based on the First Amendment privilege, and the Third District Court of Appeal in 1986 affirmed.
Nicholson obtained a favorable JNE rating in 1987, and Deukmejian appointed him to the Municipal Court, then elevated him, again with a thumbs up from JNE, to the Superior Court in 1989.
Van de Kamp, as a member of the three-person Commission on Judicial Nominees Evaluation, was called upon in 1990 to pass on Gov. George Deukmejian’s nomination of Nicholson to the Third District Court of Appeal.
On Aug. 23, Van de Kamp cast the sole negative vote, with Chief Justice Malcolm Lucas and Third District Court of Appeal Presiding Justice Robert Puglia effecting the confirmation. Van de Kamp is quoted in the next day’s issue of the MetNews as saying at the hearing:
“In the 60-plus hearings I’ve participated in, I’ve never seen more diverse views on a candidate. In the report which the candidate received—which will be filed publicly today—one will find those mixed views.
“There have been many letters from prominent people writing on his behalf. They’ve described his energy, his hard work and his conceptual abilities.
“One will also find some 23 personal contacts, persons who spoke freely with the promise of anonymity—most of whom have worked with him while he’s been on the bench—a smaller number who know him from prior positions he’s held. Almost half of those contacts are negative—some of them quite expressively so.
“They talk of his inability to work well with others—his mood swings—his inability to make decisions. It seemed that the closer one got to the nominee, the more difficult it is.
“I cannot in good conscience say that I am convinced he possesses the judgment and the stability and the experience necessary for this appointment. Accordingly, I am casting a no vote.”
The article continues:
“Following the hearing, a Department of Justice report on Nicholson prepared for Van de Kamp was released to reporters. Based on interviews with local judges and lawyers, it described Nicholson as everything from ‘a real workhorse’ to ‘marginally sane.’
“One interviewee was quoted as saying:
“‘Judge Nicholson is very emotionally disturbed. I have never met a wilder, more uncontrolled man. He is ebullient, emotional, and hysterical. He engages in the most extraordinary displays of emotional infantilism. It may be that he has reformed, but much of his life has been an emotional basket case.’”
Van de Kamp’s action was a courageous one because it was inevitable that many would view it as reeking of petty revenge. Had he voted favorably, he would have come across looking magnanimous.
Barbara Johnson, in the 1983 profile I’ve mentioned, is quoted as saying of Van de Kamp:
“He makes very tough decisions by himself. He has a very strong sense of what is right and will not make an expedient decision.”
Previous columns have quoted those who know Van de Kamp as saying that what he does, he does based on conscience.
This newspaper saw Van de Kamp’s action, at the time, as well-founded. An Aug. 27 editorial in the MetNews labels Nicholson’s performance as a trial judge “abysmal” and comments on his “utter unfitness” for “the post to which he has been treated.”
Van de Kamp now reflects:
“I voted against George and, frankly, I was almost forced to do it—not because of dislike for George, I’ve never disliked him, personally—but I got, I guess, as bad a report from our investigation of George’s work on the Superior Court as any of the judges that I had reviewed. And this was from DAs and public defenders, alike.”
Van de Kamp says he had a special assistant, Rich Jacobs, who prepared the background reports on Court of Appeal nominees, relating:
“These were fulsome reports, based on interviewing people that they dealt with, to try to get a pretty good idea on how they would be on the Court of Appeal. I’d give copies to other members of the commission, so they’d have them too and could make their own judgments. I just had to make my own mind up and in George’s case, I don’t think my staff knew what I was going to do on this case.”
He says he “just finally decided that I could not, given that report that I had” do other than to vote against confirmation.
Nicholson, still sitting on the Court of Appeal, says Van de Kamp’s vote came as a “complete surprise.” He recalls that members of his family were present who were hard-hit by the attorney general’s remarks.
The jurist reflects:
“I don’t know what his motivation was.
“It hurt my family. I counseled the family to overlook it or forget it.”
He says he doesn’t “bear grudges” and notes:
“I’ve seen John since then. We’ve been very friendly.”
During his years on the appellate bench, Nicholson has not stirred controversy. “To the best of my knowledge, on the Court of Appeal, he’s behaved himself,” Van de Kamp remarks. Nicholson observes: “I’ve had no trouble here.”
RECORDER MAKES RETRACTION—Yesterday’s column quoted the San Francisco Recorder as attributing to Court of Appeal Presiding Justice J. Anthony Kline of the First District’s Div. Two the statement that an argument was “bullcrap.” It has made a retraction, saying:
“Due to a reporting error, we misquoted Justice J. Anthony Kline in a July 31 story about a Commission on Judicial Appointments hearing. We incorrectly stated that Justice Kline, speaking to a JNE commissioner about nominee Kathleen Banke, said ‘That’s bullcrap.’ Although another reporter and some audience members also thought they heard ‘bullcrap,’ a careful review of the videotape of the hearing indicates Kline actually said ‘That’s forthright.’ ”
The balance of the criticism of Kline in yesterday’s column stands.
Copyright 2009, Metropolitan News Company