Friday, June 15, 2001
Page 7
PERSPECTIVES (Column)
CJP Ponders Complaints About Judge James Sutton
By ROGER M. GRACE
Los Angeles Superior Court Judge James M. Sutton Jr. is the target of complaints filed by various lawyers with the Commission on Judicial Performance, the common theme being that he is discourteous and assumes the role of an advocate for the defense in civil cases—tort cases, in particular.
The filing of complaints against the Norwalk jurist was orchestrated by Oakland attorney Panos Lagos, upset over what he viewed as a sabotaging by the judge of a case in which he represented a couple suing their former landlord and others. Judicial wrongdoing was not merely imagined by Lagos; on July 15, 1997, Div. Three of this district’s Court of Appeal reversed the judgment (except as to one cause of action) based on Sutton’s sarcasm and bias.
“Appellants contend that judicial misconduct deprived them of a fair trial,” Justice Richard Aldrich recited in an unpublished opinion. “We agree, and will reverse the judgment and remand for retrial before a different judge, with the exception of one issue.”
(That one issue which Aldrich let die was whether the defendants had committed a tortious breach of the covenant of good faith and fair dealing—a cause of action which, he said, is not recognized under California law.)
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The CJP, Lagos says, has “indicated an interest” in the allegations against Sutton. He comments:
“My read is they are definitely going to charge him.”
He labels the 69 year-old jurist “authoritarian, injudicious, very disrespectful.”
Other attorneys whose grievances were communicated to the CJP in 1998 and 1999 expressed similar sentiments.
•A Bel Air attorney wrote:
“I have been practicing for 15 years and am a member of the American Board of Trial Advocates (ABOTA). Although we have all had ‘difficulties’ with trial judges, I have never experienced what I would consider to be judicial misconduct.
“I recently tried a case before Judge Sutton. I now know what judicial misconduct is.”
•A San Bernardino attorney (and retired Superior Court judge) had this to say:
“I had the unfortunate experience and extreme displeasure in completing a jury trial before Judge James Sutton.
“This jurist is rude, discourteous to counsel and witnesses, condescending, and was continually found by the undersigned to display very poor judicial temperament....
“Judge Sutton would continuously make comments from the Bench regarding either belief or disbelief of expert witnesses who were testifying. He would not permit counsel to ‘make a record.’ During any issue of law being discussed with Judge Sutton (while on the record), he would simply walk off the Bench and out of the Courtroom while counsel was still talking. Judge Sutton’s conduct clearly deprived my clients, as plaintiffs, of having a fair trial.”
The former judge added that Sutton “is truly incompetent as a Judge and certainly does not have the temperament to be sitting as [a] Jurist.”
•A San Diego lawyer commented:
“...Judge Sutton severely prejudiced my client’s right to a fair trial by his persistent and rude attitude toward the trial process, Plaintiff, Plaintiff’s experts and Plaintiff’s witness. There is no doubt in my mind that I will never try a case before Judge Sutton again, regardless of who I represent, as a plaintiff’s attorney or defense counsel. Judge Sutton’s behavior and attitude were the worst examples of judicial conduct that I have ever experienced. Had my client been able to afford an appeal of her case, I am confident the judgment would have been reversed.”
He expressed the hope that Sutton will be “removed from the bench.”
•Torrance attorney Al Schallau would also like to see Sutton’s ouster.
Schallau, who brought Sutton’s conduct to my attention (see May 15 “Perspectives” column), said in a Nov. 13, 1998 letter:
“If I had a vote on the matter, my vote would be to remove Judge Sutton from the Los Angeles Superior Court.”
He asserted in that letter:
“I don’t think that Judge James Sutton is capable of complying with the dictates of the California Code of Judicial Conduct. I believe that Judge Sutton’s sarcasm, rudeness, and obnoxious demeanor are incurably ingrained into him.”
In a Nov. 2 letter, he told of a jury trial before Sutton. Schallau complained of persistent interruptions by the judge and of being forced to articulate his challenge of a juror for cause in the presence of the prospective jurors.
•A downtown Los Angeles lawyer likewise called for Sutton’s ejectment from the bench.
He said in a letter to the CJP that the jurist’s misconduct in a wrongful termination/racial discrimination case “showed that he is not worthy of sitting on the bench and should be removed.”
The lawyer alleged:
“At the very beginning of the case, during voir dire of the jury, Judge Sutton interrupted me and deliberately made numerous prejudicial statements to the jury against [the plaintiff]. The statement of the case that was read to the jury was totally inaccurate and biased against [the plaintiff]. During voir dire, Judge Sutton made disparaging remarks about me and my client in front of the jury....
“During my opening statement to the jury, Judge Sutton interrupted me at least four times to ‘clarify the record’ and made statements to the jury that substantially undermined Plaintiff’s case to be presented to the jury.”
The lawyer proceeded to recite how, at each stage of the trial, Sutton manifested bias against the plaintiff. Sutton’s alleged advocacy, according to the complaint to the commission, included helping the defense counsel present their case. The complainant charged:
“Judge Sutton would conduct side-bar conferences with defense counsel (without a court reporter) and coach and explain to [the defendant’s] attorneys how they should present their case and be more effective in front of the jury.”
Sutton, appointed to the bench in 1984, is a former insurance defense lawyer.
•A Pacific Palisades attorney leveled accusations paralleling those of other complainants.
The complaint came from a lawyer who had represented the plaintiff in a wrongful discharge/racial discrimination case. He maintained:
“From the outset, even before opening statements and continuing throughout the trial, Judge Sutton made clear to counsel that he believed the plaintiff’s claims were without merit. At the point that he made known his assessment, the case had been assigned to him for less than 24 hours and no evidence had been presented.
“Judge Sutton’s conduct and statements during the…trial were not that of an impartial and neutral arbiter, but an apparent advocate for the defendant employer. For example, Judge Sutton questioned defendants’ principal witness in a manner that suggested to the jury that he viewed plaintiff’s claims to be without merit. After plaintiff completed cross-examining defendants’ general manager (who made the decision to fire plaintiff) and before defense counsel asked a single question, Judge Sutton questioned the witness in a rehabilitative manner that made clear to the jury that the Court did not believe there was race discrimination, e.g., You didn’t fire the plaintiff because of his race, did you?”
The defendants made a contention at trial which, according to the complaint to the CJP, was contradicted both by the defendants’ answers to interrogatories and by the answer. The commission was told:
“When plaintiff read defendants’ interrogatory responses into evidence, Judge Sutton admonished plaintiff’s counsel in front of the jury that interrogatory responses were ‘just discovery’ and were ‘not evidence,’ and to move along and call the next witness—effectively telling the jury that defendants’ inconsistent statement was insignificant.”
As to the inconsistent statement in the answer, the Palisades lawyer said, Sutton asked the defendants’ lawyer to withdraw that part of their answer, thus blocking the plaintiff from using it for impeachment. Sutton does seem like a helpful chap—at least to defense counsel—doesn’t he?
And there was this allegation:
“…Judge Sutton excluded any reference to the fact that plaintiff had sickle cell disease; Judge Sutton only permitted parties to refer to plaintiff’s condition as a ‘sensitivity to cold.’ This ruling changed the facts of the case—it turned a medically recognized blood disorder into a non-medical, subjective sensation; it changed the testimony of the witnesses and altered what the defendants knew at the time of the termination. Further, it prevented the plaintiff from trying his theory of the case—that defendants knew about plaintiff’s sickle cell condition, knew that plaintiff could not work in the refrigerated sections of the warehouse because of it, and used that knowledge to create an incident (assigning him to work in the refrigerated section) as a pretext to terminate him.”
A notice of appeal was filed in the case, but a Court of Appeal settlement conference was held, resulting in an accord among the parties.
On Monday, I’ll relate some more of the complaints to the CJP and tell you of my brief interview with Sutton.
NEARING THREE DECADES—Last Monday marked 28 years since this column was launched.
Copyright 2001, Metropolitan News Company