Thursday, June 23, 2011
Page 7
PERSPECTIVES (Column)
Reform the EDD Appeals Process...and a Word About Frank Jackson
By ROGER M. GRACE
From what I’ve seen of the California Unemployment Insurance Appeals Board, Gov. Jerry Brown’s proposal that the Legislature abolish it is sensible.
As I related on Tuesday, I fired a reporter on Jan. 2, 2007, for insubordination. The Employment Development Department determined that he wasn’t fired for misconduct—even though he refused to do what he was told to do—and was entitled to benefits (to be siphoned from our reserve account). The administrative law judge agreed, citing a single case which was not even arguably in point; we appealed to the CUIAB, setting forth why the case was inapposite.
The board’s opinion incorporated by reference the statement of facts and conclusions of law in the ALJ’s decision, not discussing or even mentioning the case the ALJ relied upon, not addressing our other contentions, and merely rubber stamping the decision.
The two members of the CUIAB to whom the case was assigned were a leader of the Teamsters, appointed by Democratic Gov. Gray Davis, presumably as a pay-back for union support, and a political hack and GOP loyalist, named by Republican Gov. Arnold Schwarzenegger. Neither the teamster, Jack Cox, nor the career politician, Fred Aguiar, is an attorney.
I bring up this experience as an illustration of what can happen when cronies or supporters of appointing authorities are given high-paying jobs with no output that is visible to the public. The opinion is unpublished; an ALJ drafted it and there is no clue as to how much attention, if any, the board members devoted to it. There is a doubt as to whether either was capable of making an independent determination as to the applicability of the cited case.
Under the present system, five of the seven members of the board are appointed by the governor, one by the Senate Rules Committee, and one by the speaker of the Assembly. Only two of the members need be attorneys even though the board members theoretically are passing on the legal correctness of decisions by the board’s ALJs, who are attorneys.
And as I discussed yesterday, none of the six termed-out ex-lawmakers now on the board is a merit appointee.
There would be nothing wrong with the present system if all CUIAB members were chosen on the basis of merit, not political patronage; were attorneys; worked on the premises of the CUIAB, facilitating communication with ALJs and other staff members; and put in at least 40-hour work-weeks. That isn’t the present reality.
The existing system invites abuse—and the invitation has been accepted by the appointing authorities.
David Kline, for several years a syndicated columnist and chief of our Sacramento Bureau, is now vice president of communications and research for the California Taxpayers Association. I asked him for a comment, on behalf of CalTax.
He responds, in an e-mail:
“Reducing the cost of government by eliminating unnecessary boards and commissions is a worthy goal, and the governor’s effort should be applauded. As costs are reduced, however, taxpayers’ rights must be protected, and the state needs to have a mechanism both for employees to appeal denied unemployment insurance claims and for employers to appeal tax determinations in a timely manner. When details of the governor’s proposal are released, our analysis will consider these factors along with the impact on the state budget.”
Whatever Brown might propose, I think it is clearly feasible to eliminate the jobs of the present board members—each of whom is annually paid $128,109 except the chair, whose pay is $132,179—and not find ourselves without a mechanism for resolving appeals.
The best course, as I see it, would be to scrap the CUIAB, as Brown proposes, and create a system of review within the Employment Department with the right to a hearing before an ALJ, as at present. Simply move the CUIAB’s field ALJs to an administrative hearings division of the EDD. Then, permit a written appeal, to be determined by an ALJ in the appeals division. This is, in essence, what occurs now since an ALJ drafts the board opinion. Then, in place of token review of the ALJ opinions by board members, institute a new procedure for maintaining a check on the resolution of appeals, without dairymen or teamsters playing a role.
What I have in mind is to create a right to petition for reconsideration based on a particularization of deficiencies and infirmities in the board opinion, limited to specified grounds such as legal misinterpretation of case law, statute, or regulation, or failure to consider matters raised in the appeal. All such petitions would be heard by a senior ALJ who could deny reconsideration, draft a new opinion, or route the case to another ALJ.
Whatever remedy is fashioned, it should be recognized that the present way of doing things harks to the spoils system, fosters cronyism, and reeks of wastefulness. Change is needed.
SHAME ON JACKSON: After the CUIAB denied our appeal, Los Angeles Superior Court Judge James Chalfant spurned our writ petition, and Div. Seven of this district’s Court of Appeal affirmed. No, I won’t suggest, based on those disappointments, that the Superior Court and the Court of Appeal be abolished, along with the CUIAB.
And I’m not going to reargue here the merits of our appeal other than to grunt that the recitation of facts in the unpublished opinion was mangled and the application of law flawed.
What I will focus on is conduct on the part of the Div. Seven jurist who wrote the opinion in our case (or at least signed it, as the author), Frank Jackson. His conduct, I would submit, was irresponsible and unethical.
I’ve railed here in the past about appellate courts hiding identities of parties—such as in Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center, a 2001 case in which the Fifth District concealed the identity of a medical doctor, P. James Nugent. The doctor had, in his own name, brought a writ proceeding against a hospital in the Fresno Superior Court, a public institution, and then appealed, with his identity publicly revealed at oral argument. Nonetheless, the Court of Appeal, in an opinion by Presiding Justice James A. Ardaiz, explained this uncommon suppression of an appellant’s identity by declaring in a footnote that there was a need to “protect the physician’s professional reputation.”
Shielding identities of minors and sex-crime victims is routine and generally accepted; protecting others from identification by their true names is only occasional, and always obnoxious. Those who utilize the facilities of the public courts should not be permitted to conduct their litigation in secrecy.
Jackson did not conceal the identity of a party in our case. The name of real party in interest Steven M. Cischke, the reporter who was fired, appeared in the opinion. The jurist did something utterly bizarre and indefensible. He left out the names of three justices of this district’s Court of Appeal around whom the controversy revolved.
His May 27, 2009 opinion says that I assigned Cischke “to write an in-depth biographical profile about an appellate court justice whom the newspaper had named as one of three “Persons of the Year.”
Actually, it was a presiding justice. As noted here Tuesday, the subject of the profile was Paul Arthur Turner of Div. Five.
Nowhere in the opinion does Turner’s name appear.
The opinion relates that on Jan. 2, 2007, I provided the writer with corrections to his draft of the profile and had written atop the page: “STEVE: need something about the quality of the justice’s opinions.” It’s noted that the word “quality” was circled.
In truth, I wrote: “STEVE: need something about the quality of his opinions.” But truth did not seem to guide Jackson. Aside from the trivial matter of the word “something” having been underlined rather than italicized in the original, the words were intentionally altered: “his” was changed to “the justice’s.” This obviously does not affect the outcome of the case, but the intentional alteration of a quote does, still, constitute a lie as to what was said. The unethical nature of quote-mangling will be discussed below.
The opinion goes on to say:
“Cischke thereafter undertook to comply with Grace’s directive, by calling and leaving messages for the justice’s current and former associates. Two of the justice’s current associates returned Cischke’s calls but were uncomfortable with Cischke’s request for comments on the quality of the justice’s opinions. One associate said only that all justices write good opinions. The other stated that the opinions of the justice involved were ‘okay.’ One associate discouraged Cischke from following up on the quality angle. Both provided information regarding the justice’s personal attributes, however.”
I’ll repeat that paragraph, with insertions:
“Cischke thereafter undertook to comply with Grace’s directive, by calling and leaving messages for the justice’s [that is, Turner’s] current and former associates. Two of the justice’s current associates [Justices Richard Mosk and Orville Armstrong of Turner’s Div. Five] returned Cischke’s calls but were [purportedly] uncomfortable with Cischke’s request for comments on the quality of the justice’s [Turner’s] opinions. One associate [Armstrong] said only that all justices write good opinions. The other [Mosk] stated that the opinions of the justice involved [Turner] were ‘okay.’ One associate [Armstrong] discouraged Cischke from following up on the quality angle. Both provided information regarding the justice’s [Turner’s] personal attributes, however.”
The omission of names was for no legitimate purpose.
Assume this scenario: the editor of Variety instructs a reporter who had written a profile on Halle Berry to garner comments from other stars on the quality of Berry’s acting; Meg Ryan says her acting is “OK,” and Cameron Diaz remarks: “She acts well, I act well, we’re all good actresses,” and advises the reporter not to follow that line of inquiry; and the reporter thereupon takes it upon himself to nullify the editor’s instruction and to make no further attempt to secure comments.
You can bet the names of the actresses would not be left out of the opinion.
If sports figures or tradesmen, persons living in the limelight or obscurity, played a significant role in the fact situation giving rise to the litigation, those persons normally are identified by name. Turner, Mosk, and Armstrong weren’t. They are not minors, are not sex-crime victims.
Ah, but they are Jackson’s judicial colleagues. Maybe it wouldn’t look good if it were known that Mosk and Armstrong couldn’t manage to identify one single earmark of a Turner opinion—such as his penchant for providing at least two citations for every proposition, not just one. It might let out of the bag the fact that Div. Five is not a happy home. And, certainly, Armstrong would look like an ass if the statement were attributed to him that all justices write good opinions, implying that there’s no differences in the quality of the writing.
(Those who are aware of the quality of Turner’s opinions—which are solid and lucid—might well infer jealousy or pettiness on the part of the associate justices for withholding a recognition of the attributes of their chief’s writings.)
Yesterday, I mentioned the shoddy quality of some of Schwarzenegger’s appointments to the CUIAB. Rather than serving the people, he was inclined, in awarding posts, to “do a favor for a pal,” as the saying goes. Jackson is of like mentality. He misused his office by doing a favor for judicial colleagues. He invoked secrecy not for the public’s good, but to be nice to other judges, to accord them special treatment that others would be denied. It’s a form of cronyism.
Falsifying quotes is, in my book, unconscionable.
As I mentioned, Jackson changed “his” to “the justice’s.” This was obviously an effort to conceal Turner’s identity beyond not mentioning his name. “The justice” might be a man or might be a woman.
Also, Jackson changed the words “Armstrong and Mosk” within a quote to “the two Justices.”
Aside from the objective of concealing names and gender being improper, the means of achieving it was dishonest. Jackson could have done what he wanted to do by replacing the actual words with words inserted in brackets, thus making clear the editing.
(He did use brackets at one point, curiously defeating his obvious objecting of obscuring gender, changing “Justice Turner” to “[him].”)
The alteration of quotes cannot be assumed to have been through inadvertence. It was pointed out in the petition for rehearing; the misquotations were not fixed.
Within the journalistic community, intentionally altering quotes is considered highly unethical. It is to be hoped that the ethical standards within the judiciary are not beneath those of the Fourth Estate.
While journalistic codes of ethics obviously are not applicable to judges, if members of appellate courts wish to be ethical, they would do well to conform to this practice, set forth in The Associated Press Statement of News Values:
“We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote’s meaning is too murky to be paraphrased accurately, it should not be used.”
Certainly a quote should not be altered because what was actually said does not suit the court’s purpose.
If any reporter for this newspaper intentionally falsified quotes—as Jackson did in his opinion—and if I found out about it, that reporter would be fired.
I suspect that Jackson would deem such misconduct to be no impediment to the award of benefits to that discharged employee, to be drawn from our reserve account…meaning continued payment of monies by us to an employee who defied our interests.
Signing Jackson’s opinion were Presiding Justice Dennis Perluss and Justice Laurie Zelon.
Copyright 2011, Metropolitan News Company