Monday, July 29, 2013
A.G. Declines to Enter Dispute Over Retired Judge Assignments
By KENNETH OFGANG, Staff Writer
Attorney General Kamala Harris has denied a Shasta County man leave to bring a quo warranto action challenging the longstanding practice of granting multiple consecutive trial court assignments to certain retired judges.
In an opinion that avoids the merits of Charles Wagner’s constitutional and policy arguments, the attorney general said the issue was moot because the chief justice has ordered that the object of Wagner’s ire—retired Shasta Superior Court Judge Jack Halpin—no longer sits by assignment.
In applying for quo warranto, Wagner—an elderly man who had a family law cases in front of Halpin—also attacked the general practices of granting multiple or consecutive assignments of a particular judge to a particular court, of assigning retired judges without a finding of exigent circumstances, and of issuing orders that allow a retired judge to return to complete work on cases heard during the period of an assignment that has otherwise expired.
By Wagner’s count, Halpin, who returned to work on assignment more than three decades after leaving the bench to join the state executive branch, was assigned to the Shasta court by 208 separate orders over an 18-year period.
But the attorney general, in her opinion Thursday, said quo warranto is not the appropriate remedy to attack the chief justice’s exercise of constitutional powers.
Quo warranto is generally the sole means by which a court may oust an individual alleged to be holding public office illegally. It may be sought by a private party who seeks leave from the attorney general to file the action, or the attorney general may file it directly.
Wagner’s contention that the challenged practices violate the constitutional requirements that superior court judges be elected in their respective counties, and that they serve six-year terms, does not amount to a claim of usurpation of public office, the attorney general said.
It is, she explained, essentially a claim that the chief justice has exercised her powers in an ulta vires manner.
“We find no basis in [statute] or in any judicial decision for the invocation of a quo warranto action in connection with the issues presented...and we have not considered quo warranto to be the proper vehicle for challenging the legality of the actions of legitimate state officers under the type of circumstances presented here.”
The attorney general, for whom the opinion was prepared by Deputy Attorney General Diane Eisenberg, noted that the denial of leave to sue in quo warranto does not preclude Wagner from bringing another form of action to challenge the way the chief justice, the Judicial Council, and the Administrative Office of the Courts handle assignment orders.
Halpin, according to a story in the Redding newspaper, the Record Searchlight, was appointed to the court in 1962 by then-Gov. Pat Brown, but left two years later to join Brown’s administration as deputy finance director. He was later promoted to chief deputy director, but left in 1965 to run for the state Senate.
He lost that contest to Republican Fred Marler, later a Sacramento Superior Court judge, Third District Court of Appeal justice, and president of the California Judges Association.
Halpin subsequently practiced law in California, Hawaii, and New York, but became an inactive State Bar member in 1991. He began accepting assignments to the court in 1994, and continued to serve until last year.
The last assignment order, the attorney general explained in her opinion Thursday, was made in late 2011. But Halpin returned to the court to hear matters in several cases, including the Wagner case, that he had been working on prior to that order.
Wagner contended that such continued service was illegal, and also challenged the judge under Code of Civil Procedure Sec. 170.1. Halpin did not contest that motion within the required 10 days, and it was granted by operation of law.
The chief justice’s order of Dec. 18 of last year, filed after the 170.1 challenge was filed but before it was granted, stated that Halpin “shall have no authority, by virtue of assignment by the Chief Justice, to hear any case, cause, or matter in the Superior Court of Shasta County.”
In an email to the MetNews Friday, Halpin said he believed the order “was motivated by a desire on the part of the AOC to avoid dealing with the merits of the quo warranto proceeding at my expense.”
He provided a copy of a memo he sent to Shasta judges at the time, in which he said he had been “unfairly treated by the AOC,” and that “[the] AOC and the Chief Justice have failed to support me in the face of vicious attacks by individuals and entities who have utter contempt for the judiciary,” including “the blogs of Judicial Watch, Barbara Kauffman, and others.”
Kauffman is a Mt. Shasta attorney who represented Wagner in the application for quo warranto.
Kauffman told the MetNews that Halpin, who is in his late 80s, was viewed by many parents who had custody cases in front of him as unfit for the bench. She said she did not know whether she would take the type of legal action suggested in the opinion.
Copyright 2013, Metropolitan News Company