Thursday, October 18, 2001
Page No.: 1
Ex-Judicial Candidate Urges Appeals Court To Revive Suit Over Search of Her Home
Roberts, Fighting Arson Charge, Seeks to Sue ‘Vindictive’ Prosecutors
By KENNETH OFGANG, Staff Writer/Appellate Courts
The attorney for a Los Angeles lawyer who lost a bid for a Superior Court judgeship last November yesterday urged a Ninth U.S. Circuit Court of Appeals panel to reinstate her civil rights lawsuit against the Los Angeles Fire Department and the District Attorney’s Office.
Richard G. Sherman, a Century City attorney representing Vicky M. Roberts, argued that a legal doctrine that generally bars federal courts from interfering in ongoing state court proceedings doesn’t apply in Roberts’ case because she wasn’t given a “full and fair hearing” in state court.
Roberts, who lost a runoff to David Mintz in last year’s contest for an open seat in the former Los Angeles Judicial District, was charged last May with three misdemeanors growing out of the investigation of an arson-for-profit scheme. That charge is a result of “prosecution run amok,” she told the MetNews after yesterday’s argument.
The criminal charges are “retaliatory and vindictive,” she said, and grew out of her attack on the veracity of the LAFD arson investigator looking into allegations against clients of hers who were also charged in the alleged scheme.
“When all else fails, charge the defense attorney,” Roberts said, summing up what she said is the attitude of prosecutors. Roberts expressed indignation and said she has not ruled out running for another open judgeship next year, even if the criminal case is still pending.
Roberts is currently the plaintiff in a lawsuit challenging the precess by which the Los Angeles County Bar Association rated her “not qualified” for election to the bench. LACBA is currently appealing the denial of its motion to strike the suit under the anti-SLAPP law.
In the criminal case, she is awaiting rulings on her demurrer and her motion to disqualify the District Attorney’s Office.
Yesterday’s argument centered on Roberts’ action for declaratory and injunctive relief, challenging the legality of a December 1998 search of her home by police pursuant to a warrant.
She claims that the 45 boxes of material seized included materials protected by the attorney-client and work-product privileges, and is seeking to bar the use of the seized materials in the state case against herself and her clients and a declaration that the search was unconstitutional.
U.S. District Judge Dean Pregerson of the Central District of California dismissed the suit, citing the Rooker-Feldman doctrine that bars lower federal courts from reviewing the merits of final state court orders.
But Sherman yesterday urged the judges to invoke an exception to Rooker-Feldman, saying Roberts wasn’t given the fair hearing to which she was entitled on her suppression motion.
Sherman explained that Los Angeles Superior Court Judge William Pounders granted Roberts an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1989). That case established the rule that deliberately or recklessly false statements may be excised from a warrant application and probable cause reevaluated based on the remaining information.
But Roberts and her counsel contend that the hearing conducted by Pounders didn’t satisfy her right to due process. They claim the judge was biased against the accused, unduly limited cross-examination of the affiant, and barred the admission of admissible evidence that police had concealed facts in seeking the warrant, among other errors.
But Senior Judge Dorothy W. Nelson suggested that the allegations of the lawsuit are “inextricably intertwined” with the state criminal proceedings and that Rooker-Feldman must therefore apply.
Sherman argued, however, that the denial of the motion to suppress wasn’t final for purposes of the doctrine, because the Court of Appeal and California Supreme Court gave “postcard” denials of review rather than hear the merits.
Raymond Fuentes, a Glendale lawyer representing the District Attorney’s Office, noted that in addition to her federal suit, Roberts filed two related suits in state court, both of which were dismissed. Those rulings are on appeal.
Her federal suit, Fuentes argued, is barred by Rooker-Feldman because it seeks to relitigate not only the motion to suppress, but the state civil actions as well. The summary denials of writ relief by the state appellate courts with respect to the suppression motion, he argued, are also covered by the jurisdictional bar.
Fuentes declined to discuss the case after court, citing the pendency of the remaining civil and criminal cases.
The case is Roberts v. Los Angeles City Fire Department, 00-55591.
Copyright 2001, Metropolitan News Company