Wednesday, January 22, 2003
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Court of Appeal Tosses Former Judicial Candidate Vicki Roberts’ Suit Against County Bar as SLAPP
By KENNETH OFGANG, Staff Writer/Appellate Courts
A suit challenging the way the Los Angeles County Bar Association evaluates judicial candidates was thrown out yesterday by this district’s Court of Appeal.
Justice Fred Woods, writing for Div. Seven, said the suit by attorney Vicki M. Roberts, who lost a bid for election to the Los Angeles Superior Court in November 2000, infringed on LACBA’s free speech rights and constitutes a strategic lawsuit against public participation.
Roberts, who ran in the last contest held within the old Los Angeles Judicial District, lost by 50,000 votes to then-prosecutor David Mintz after outpolling four other contenders in the primary despite LACBA’s “not qualified” rating. Mintz was rated “well qualified.”
Under the longstanding LACBA procedures, candidates are initially interviewed by a subcommittee of the association’s Judicial Evaluations Committee, which then recommends a rating to the full committee.
The full committee may rate a candidate well qualified, qualified, or not qualified. Ratings less than well qualified are considered tentative, and a candidate may appeal and appear before the full committee in an effort to upgrade the rating. Roberts availed herself of that right, to no avail.
Roberts accused LACBA of breach of contract and fraud and sought declaratory and injunctive relief as well as damages. She said the committee promised her—as it did each of the candidates—a fair process that was not forthcoming because the committee failed to abide by its own rules.
Specifically, Roberts said she was subject to an initial interview that “had all the attributes of an ambush,” and that the committee did not comply with a rule that requires candidates be given 48 hours’ notice of any negative material it intends to ask about. She also complained that a committee member whom the chairman had disqualified from her evaluation due to a conflict of interest was present when she was interviewed by the full committee, although not during the deliberations afterward.
Los Angeles Superior Court Judge Emilie Elias dismissed the injunction cause of action but allowed the damage claims to go forward. The County Bar, however, exercised its statutory right to an interlocutory appeal of the denial of its anti-SLAPP motion.
The motion should have been granted, Woods wrote for the Court of Appeal, because LACBA satisfied its burden of showing that its free speech rights were being chilled and Roberts did not make the required countervailing showing that she was likely to prevail on the merits.
The justice rejected Roberts’ claim that the suit was not a SLAPP because she was only attacking the process and not the end product. The procedures, Woods said, were “inextricably intertwined with and part and parcel of the evaluations.”
Roberts cannot prevail on her breach of contract claim, the justice went on to say, because there is no evidence that the alleged breach harmed her reputation, especially since her original interview was rescheduled to give her the required notice of negative comments. And any defect in the notice could have been cured at the appeal hearing, Woods said.
Nor is there any evidence that “the mere presence of a disqualified committee member at her appeal hearing affected the vote,” Woods said, noting that an overwhelming majority of the members voted Roberts “not qualified.”
Roberts told the MetNews that while the court treated her “with great respect,” it had reached the wrong decision. She said she will seek review in the California Supreme Court because the committee should not be allowed to use the evaluations process “to control the outcome of judicial elections.”
LACBA’s appellate lawyer, Gary Kessler of Wilion, Kirkwood & Kessler, declined to comment other than to say that “the opinion speaks for itself.”
The case is Roberts v. Los Angeles County Bar Association, B150039.
Copyright 2003, Metropolitan News Company