PERSPECTIVES (Column):
Vogel Draws Praise, Criticism; Schacter, Sutton Evoke Scorn
By ROGER M. GRACE
Some recent columns on judges have drawn responses. To wit:
MIRIAM VOGEL, who sits on Div. One of this district’s Court of Appeal, is intemperate, an attorney told me.
He telephoned to share with me his impressions of Vogel, whom he encountered, he said, four or five years ago when he argued before Div. One. The lawyer told of her “pounding her fist on the bench,” and his having a “flashback,” thinking: “Hey, this is like Nikita Khrushchev who was banging his shoe on the lectern at the U.N.”
The caller remarked:
“She’s a maniac. She yells and screams.”
The attorney added:
“She’ll ask a whole string of four or five questions at once, and you’re expected to remember each of the five questions and answer. It’s totally incomprehensible and nuts.”
In her opinions, he observed, Vogel puts on “a show that she’s academic and scholarly, when she’s not.” He pointed out that she attended classes at Santa Monica City College and the UCLA extension program, but lacks a degree. Her J.D., he noted, was from Beverly School of Law (now Whittier Law School).
Others, however, opined that Vogel was treated unfairly in the columns.
•Irving H. Greines of Greines, Martin, Stein & Richland (a top appellate firm), had this to say, in a letter sent last Thursday:
It was disappointing to start the new year reading your series of “Perspectives” columns that personally attack Justice Miriam Vogel, a judge whom your paper once named Co-Person of the Year and whom you concede writes clear, insightful and praiseworthy opinions.
Justice Vogel’s history as an appellate jurist reveals she has served the people of Califomia with distinction. She has a keen mind; she thinks and cares about the law and the effect of its application in a modern world; she applies the law in common sense, practical fashion; she works diligently in crafting opinions that add clarity and substance to the law; she possesses the courage to reach results commanded by the law even if they may not be popular; she works hard and cares enough about her responsibilities to not hesitate to undertake the added burden of dissenting or separately concurring when she disagrees with the majority (even in non-published decisions that do not have precedential effect); she never hides the ball in her opinions or in court.
When Justice Vogel participates in a panel, both litigants and advocates know she has paid attention and has given the case her best shot. If more of our judges met (or even arrived to meet) these standards, our judicial system would be much better for it.
While I respect your right to criticize Justice Vogel’s opinions and to disagree with her approach and style, your fierce, mean-spirited, insulting personal attack is unprofessional. It demeans your credibility and that of your paper. Justice Vogel does not deserve such abuse.
Assuming everything Greines says to be true, this does not address, let alone refute, the point made by the columns: that Vogel is engaged in a campaign to deride and demean two of her colleagues, Presiding Justice Vaino Spencer and Justice Robert Mallano—and that using a judicial opinion as a sword with which to slash at colleagues is inappropriate. In two concurring opinions on Dec. 20 and one on Dec. 28, Vogel presumed to critique the quality (which she found to be lacking) of Spencer’s majority opinions. She proclaimed two of them to be verbose and one to be circuitous. Of late, when she has expressed views of the law differing from those of Spencer and Mallano, she’s gotten nasty.
Even if Vogel does possess each of the qualities Greines attributes to her, I fail to see how this renders it inappriopriate to spotlight her recent displays of uncollegiality.
•One member of the Court of Appeal wrote:
“Your series of articles on certain opinions by the Hon. Miriam Vogel has certainly been the topic of conversation among Second Appellate District judiciary and support staff!
“Without commenting on the content thereof, I suggest you could have found an accompanying photograph of Justice Vogel more to her likeness; she is an attractive woman. Some of my colleagues agree; hence this letter.”
There was no conscious effort to select an unflattering photo. Our staff photographer has been snapping shots of Court of Appeal justices recently for our files, and we have four photographs of Vogel taken in November. The most recent photo of her, aside from those four, was taken in 1993. Three of the up-to-date pictures seemed a bit over-exposed; I picked the one shot that wasn’t. I was, however, relying on an outmoded criterion, failing to take into account the ability of our production staff nowadays to adjust photos on the computer after scanning them. Below is a photo of Vogel with a smile on her face and appearing somewhat less austere than in the previous photo.
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DAVID SCHACTER, a judge of the Los Angeles Superior Court, is “crazy.” That’s the assessment of a former colleague of Schacter.
The retired jurist recounted that when Schacter was transferred from a courtroom in San Fernando to Burbank, he was “very, extremely” upset, and “there was a whole string of profanities about the court” uttered by him.
Schacter, who had been supervising judge in San Fernando, was shifted to Burbank, effective Jan. 1, 1993, by the new presiding judge, Robert Mallano (now a justice of the Court of Appeal). Defense lawyers there complained of Schacter’s pro-prosecution bent. He has been assigned to civil cases since his transfer.
“In Burbank, he felt he was being ostracized and isolated,” his former colleague, who spoke on condition of anonymity, told me. He said Schacter’s attitude was:
“To hell with them, to hell with them all. I’ll do what I want to do—what else can they do to me?”
Schacter has been “arbitrary and arrogant,” the former judge observed.
Here are other comments on Schacter:
•A leading attorney faxed me these comments by a member of his firm:
“Schacter is known in the community as ‘Schaft’er.’ He lives with the rules as a weapon for the unwary lawyer—even using outdated rules as a club. For example, well after the Judicial Rules were amended to limit ‘local, local’ rules, the clerks in Burbank were still measuring the number of characters in a motion to reject papers even though the rules allowed for use of proportional typeface. In fact, Schacter’s ‘Rules’ result in the denial of a motion even if one footnote is single spaced.”
•Banning attorney Rees Lloyd telephoned Friday, complaining:
“Schacter is the worst judge I’ve appeared before.”
He’s been a lawyer since 1979.
Lloyd charged that Schacter “makes up his own rules as he goes along and doesn’t give a damn.” He observed that the judge “yells at people, screams.”
The lawyer recounted that he was the plaintiff in a case involving real estate and, while being cross examined, was asked if a document he was handed were the document he had signed. He said he responded that it was not; it was a copy, not the original, and the original had been two sided while the copy was one-sided. Lloyd said that Schacter asked the clerk for the file, got off the bench and rifled through it “for several minutes” with the jury present, “muttering” about being put to the trouble. The judge, he said, located the original, returned to the bench and “thrust” it at him, complaining about his needless denial as to the authenticity of the copy.
Lloyd noted that the original was, indeed, two-sided so that the copy was only “half” of the actual document.
He also questioned a practice which he said Schacter follows in connection with pre-trial proceedings:
“Oral argument is limited to five minutes, no matter how complex the case. If you ask for over five minutes, he denies oral argument.”
Lloyd remarked: “I’ve never seen anybody as arbitrary and capricious as Schacter.”
•As I recited in a previous column, the Court of Appeal in June yanked a case from Schacter because he was trying it in “dribs and drabs,” with about a year having elapsed since it started. The plaintiff, Brad Weisbren, has faxed me a copy of a letter of complaint he sent to Presiding Judge James Bascue on March 1 reciting the sessions that had been held to that point:
July 26, 2000, 20 min.; July 27, 2 hours; Aug. 1, 11/2 hours; Sept. 12, 11/2 hours; Oct. 10, 11/2 hours; Jan. 16, 2001, 11/2 hours; Jan. 22, 21/2 hours; Feb. 5, 11/2 hours; Feb. 6, 11/2 hours.
It would seem, however, that Schacter has paid heed to the Court of Appeal’s June opinion holding that this approach is unacceptable. Lakeport attorney Richard Massa, whom I contacted, said that a case in which he was a defendant was slated for a court trial last Monday and, in fact, was tried by Schacter Monday afternoon, Tuesday, and Wednesday morning.
This was, he noted, the second trial. The first time around, by contrast, Schacter heard only two hours of testimony on the first day, and had other short hearings scheduled for future dates, Massa said. (That trial, he advised, was aborted because the plaintiff died, and proceedings began anew.)
The attorney characterized Schacter as “mean, nasty, sarcastic, wrong.” The label “wrong” probably relates to the fact that Massa lost. Nonetheless, his observations as to Schacter being “mean, nasty, sarcastic” seems to be a common perception.
So is Massa’s assessment that Schacter is “not judicious” and is “not a credit to the judiciary.”
Lawyers and litigants should not be subjected to disrespectful treatment by public servants, whatever their garb. Those in black robes are public servants, plainly and simply, wearing one type of uniform. It would appear that Schacter does not know his place, fancying himself as one who reigns, rather than serves.
JAMES SUTTON, a judge of the Los Angeles Superior Court, is not apt to be forgotten by the husband of a litigant in Sutton’s courtroom who was suing for wrongful discharge. Sutton’s blatantly prejudicial handling of the case (his prejudice in tort cases is decidedly for the defendant) was chronicled here June 20.
Husband Jeff Steele said of the time when the case was in trial in Sutton’s Norwalk courtroom: “This is a period in our lives that I should try to forget, but I don’t.”
Steele commented in an e-mail:
“I can honestly tell you that Judge Sutton’s conduct is even more extreme than you portray in your columns. He is not only a failure as a Judge, he is a failure as a Human Being.
“The plaintiff, and my wife, Loretta Steele, became ill during testrimony. She asked for leave to go to the restroom. Judge Sutton allowed her 5 minutes to go down the hall to the public restroom. He called court into session in exactly 5 minutes. He actually timed her! This coming from a Judge who read the newspaper and opened his mail during trial. I personally witnessed this daily.”
He went on to say:
“I could spend days telling you ‘horror stories’ I actually witnessed in Judge Sutton’s Courtroom. I will save you this time. I only ask that you continue to pursue this matter in print and press the CJP to file charges against Judge Sutton.”
Through the efforts of Oakland attorney Panos Lagos and others, the Commission on Judicial Performance has been investigating Sutton over the past four years. Will the commission, at long last, act?
Copyright 2002, Metropolitan News Company