Tuesday, August 10, 2010
Page 7
PERSPECTIVES (Column)
Judge Hilleri G. Merritt Lacks the Qualities She Boasted She Has
By ROGER M. GRACE
“We need strong, fair, ethical judges, and I’m all of those things.”
So said Deputy District Attorney Hilleri Grossman Merritt in an interview with the MetNews two years ago when she was running for an open seat on the Los Angeles Superior Court.
She was elected.
Merritt demonstrated last week that she is not a strong judge, not a fair one, not an ethical one.
Merritt merits scrutiny.
A “strong” judge, in the sense of having fortitude, would have the gumption to admit, “I was wrong,” and rescind an errant order. Last Thursday, she failed to do that, and her failure has continued since then.
Merritt made a manifestly invalid order on Wednesday when she commanded the Los Angeles Times not to publish photographs that were taken in her courtroom with her consent. Having changed her mind, she did have the power to call a halt to further photography. But to tell the Times “don’t publish” the photos that had already been snapped was a prior restraint, and decisions of the U.S. Supreme Court make clear: absent extreme circumstances (which were not even arguably present), prior restraint of the press violates the First Amendment.
Div. Five of this district’s Court of Appeal, in issuing an alternative writ yesterday, cited two federal high court decisions which preclude an order such as that Merritt made: Oklahoma Publishing Company v. District Court In and For Oklahoma County, a 1977 decision which invalidates an order against publishing a minor’s name and likeness, and Nebraska Press Assn. v. Stuart, a 1976 opinion which declares unconstitutional a gag order forbidding dissemination by the press of lawfully obtained information on a defendant’s confession.
Div. Five also cites two Court of Appeal opinions directly in point: South Coast Newspapers, Inc. v. Superior Court, handed down by the Fourth District’s Div. One in 2000, requiring the vacation of an order against publication or broadcast of the defendants’ likenesses unless distorted, and a 1988 decision from that same court, KCST-TV Channel 39 v. Municipal Court, which dictates the scrapping of an order that a television station not broadcast a sketch of a defendant made in open court.
The KCST court said:
“Prior restraints on media publications, if permissible at all, are permissible only in the most extraordinary of circumstances.”
It pointed to the 1971 U.S. Supreme Court decision in New York Times Co. v. United States—the “Pentagon Papers” case—“where the government’s attempt to restrain publication of material it claimed posed a ‘grave and immediate danger to the security of the United States’ was rejected.”
In that case, as Justice William Douglas summed up the state of the law in a concurring opinion, a prior restraint could be upheld only upon a showing “that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.”
There was no such situation before Merritt. She had given the Times permission to take shots in the courtroom during the arraignment of an accused murderer; after several dozen shots had been taken, a deputy district attorney made note that another judge had previously barred photos in the case; the deputy public defender expressed a preference that photos not be taken; Merritt decreed, according to the minute order, that the Times was “not to publish any photographs of the defendant taken from the proceedings of this date.”
●The invalidity of that order is something even a neophyte judge such as she should have realized at the time she made it.
●If she didn’t, it is something she should have ascertained later in the day by consulting colleagues or looking up the law; surely she sensed that her action was extraordinary and would be contested.
●It is something she did know once lawyers for the Times pointed to the dispositive cases on Thursday…unless the unimaginable is so: that she is too dense to comprehend unambiguous language in court opinions.
Her refusal to vacate the order on Thursday was mind-boggling.
Either she lacks the strength of character to admit to an error, or (less likely) so lacks strength in legal skills that she is ill-equipped to function as a judge.
In either event, she cannot be viewed as a “strong judge.”
A “fair” judge is one who seeks to apply the law impartially. Indeed, the phrase “fair and impartial” is often used in expressing a view as to what a judge or proceeding has been, or hasn’t. The two words are near synonyms.
There’s no reason to suppose that Merritt is biased for against the prosecution or the defense in the case in which she made her aberrant order.
But now there is a new party: Los Angeles Times Communications LLC. It is the petitioner in a writ proceeding aimed at overturning Merritt’s order.
Has she been fair toward the Times? She barred it (or purported to bar it if her order is viewed, as it properly should be, as a nullity) from publishing photographs. She spurned its bid for her to rescind the order notwithstanding actual awareness on her part as to its invalidity (again assuming she is not a dolt, incapable of comprehending the meaning of Supreme Court opinions). She has put it to the trouble of filing a petition for a writ of mandate/prohibition.
The contest might well be billed: “Hilleri Merritt’s Ego versus The Los Angeles Times.” She ruled; she was unwilling to concede that she erred; her premise seems to be that if the Times disputes her ruling, it must be wrong. Perhaps she’s a student of Judge David Yaffe, who is (in his own mind) infallible.
This newspaper, I confess, endorsed Merritt two years ago after our first choice among the three candidates lost in the primary. It was a lukewarm endorsement. It mentioned that Merritt “has gained a solid reputation for fairness.” Perhaps she was imbued with fairness as an attorney.
A “fair” judge? No, not she.
An “ethical” judge would not seek to obscure, through subterfuge, what actually occurred in a judicial proceeding.
Merritt attempts, through an intermediary, to portray that what took place at the hearing on Thursday (the hearing at which the Times lawyers appeared) was a required balancing by her of free-press rights and fair-trial rights.
Court Public Information Director Allan Parachini—a former Los Angeles Times reporter who was no doubt embarrassed in the extreme on Thursday to be voicing a defense of what this judge had done—told MetNews staff writer Ken Ofgang:
“The record of both yesterday’s and today’s proceedings accurately depicts Judge Merritt’s actions in this matter and her concerns about the balance between Sixth Amendment and First Amendment issues.”
The minute order on Thursday sets forth that Merritt’s “job is to balance many interests.”
Her job is to balance competing interests when the law so dictates. Her job does not require any balancing act where the law points to only one permissible course.
Merritt would properly have engaged in a balancing of “free press versus fair trial” rights when the request was initially made by the Times to take photos during the proceeding last Wednesday. However, once the photos had been taken, and the judge belatedly learned that a colleague had ordained that such extended coverage would not be permitted, the time for weighing competing interests had passed.
The photos having been taken, and taken permissibly, the images belonged to the Times, and Merritt had no lawful claim to any control over the use of them…that is, unless publication of them would have spawned a peril akin to reporting troop movements.
Any slight discomfiture to the defense would not have met that standard, and common sense just doesn’t permit an argument to the contrary.
Merritt’s effort to rationalize, through obfuscation, an order mistakenly made by her is hardly the mark of an ethical judge.
There is no case that can be cited that supports Merritt’s action.
As of late afternoon yesterday, it appeared that Court Counsel Fred Bennett won’t attempt to defend Merritt’s order, but the Office of Public Defender probably will.
Under Business & Professions Code §6080, a lawyer has a duty in a civil matter “[t]o counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just” and “never to seek to mislead the judge or any judicial officer by…[a] “false statement of…law.”
It is difficult to conceive how a lawyer could argue in favor of the order without breaching those statutory duties.
Now that an alternative writ has issued, Merritt is obliged to confer with the parties, as required by a footnote in Brown, Winfield & Canzoneri v. Superior Court, handed down earlier this year by the state Supreme Court. After hearing this morning what objections Deputy Public Defender Patricia Mulligan has to the photos being published, she should do what she ought to have done last Thursday—and should have done sua sponte before the alternative writ was issued: vacate the order.
If she cannot bring herself to apply the law, as it established to be in decisions of the United States Supreme Court and the appellate courts of this state, she should resign from office.
SENSELESS SECRECY: There is a trend since the 1990s of litigation being conducted in our public courts behind curtains.
DOEs and ROEs—ones whose identities are known—are frequent litigants. Files are sealed with no stab at making specific findings, required by the 1999 California Supreme Court decision in NBC Subsidiary v. Superior Court. Files that are public are crammed with documents blithely redacted.
In 2001, the Fifth District Court of Appeal issued a decision in Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, concealing the identity of a doctor suing over hospital privileges even though his name (P. James Nugent) appeared in the public record. Six years later, the First District Court of Appeal topped that; a decision lists as petitioners “Eight Unnamed Physicians.”
A complaint filed in the Los Angeles Superior Court on Thursday in Doe v. Doe points to the absurdity of an identity-shielding statutory provision that, while doubtlessly well intended when inserted in 1994, is so broad as to lead to absurd results.
The plaintiff, dubbed “JOHN ME DOE,” is 27. He was allegedly a victim, as a child, of sexual abuse by a priest, Father Nicholas Aguilar-Rivera, since defrocked, who was not named as a defendant.
Under Code of Civil Procedure §340.1, where the plaintiff in such a case is over the age of 26, “no defendant may be named except by ‘Doe’ designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant.”
DOES 7-100 are persons or entities whose identities have not been ascertained. DOES 1-6 are persons or entities that are known, and the statutory ban on identifying them in the complaint is ludicrous.
“DOE 1” is the archdiocese that “has responsibility for Roman Catholic Church operations in Ventura County, Santa Barbara County and Los Angeles County, California.” In other words, the Archdiocese of Los Angeles. But, the pleader is obliged to name a Doe.
The suit was filed in the Central District. The civil cover sheet shows it was filed there because harm was inflicted at 2610 S. Mansfield Avenue. If you do a Google search, you’ll see that that’s the address of St Agatha Catholic Church. But that church is labeled in the complaint, “DOE 3.” (The Associated Press story Thursday on the filing of the complaint mentions that church by name.)
“DOE 2” is the “church, parish or school” to which Aguilar-Rivera was previously assigned. There have been various previous suits based on his activities, and attendant news coverage. This fictitiously named defendant is Our Lady of Guadalupe Church.
“DOE 6” is described in the complaint as the cardinal archbishop of Mexico City. In less than a minute, his identity can be ascertained as being Norberto Rivera.
DOES 4 and 5 are organizations, the identity of which could be ascertained with a bit of effort, but I think you get the idea.
In this age of expanding rights of secrecy—who knows?—lawyers who want the fee for taking on a case but don’t want to be publicly associated with it might be allowed to bring actions with concealed identities. If there are “unnamed physicians,” why not “Unnamed Lawyer, Attorney for Plaintiff”?
If doctors disputing curtailment of hospital privilege are allowed anonymity, why not lawyers disputing State Bar discipline?
Judicial decisions by DOE judges?
Of course, I’m being facetious. The point is: secrecy in the courts has gotten out of hand.
The complaint in Doe v. Doe is signed not by DOE, but by Anthony M. De Marco of the Beverly Hills law firm of Kiesel Boucher Larson LLP. Raymond P. Boucher is also representing John Me Doe.
Atop the first page of the complaint, other lawyers are listed: Marsha M. Escuitia and Joseph L. Dunn of the law firm of “THE SENATORS (RET.) FIRM, LLP.”
Escuitia, from Los Angeles, and Dunn, from Orange County, were both in the state Senate from 1998-2006.
The law firm’s name does have more pizzazz than “Escuitia & Dunn”—or, more modernly, “Escutia Dunn”—though fictitious law firm names do strike me as lacking in dignity.
Of course, the ex-solons could have named the firm, “LAWYERS WITH POLITICAL CLOUT, LLP.”
Copyright 2010, Metropolitan News Company