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Masters Expected to Release Report in Justice Johnson’s Disciplinary Case…Bumatay, VanDyke, Confirmed as Ninth Circuit Judges…23 Compete for Nine Los Angeles Superior Court Seats
Three masters who heard testimony by more than 100 witnesses in the disciplinary proceeding against Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One, and now have before them proposed findings of fact and conclusions of law presented by each side, are expected to make their report in the month ahead.
Johnson is accused by the Commission on Judicial Performance (“CJP”) of sexual harassment of females over a period of more than 15 years, which predates his assumption of his California judicial post in 2009. The masters who will weigh evidence put forth at a hearing that began Aug. 5, with closing argument on Oct. 8, are Court of Appeal Justice Judith L. Haller of the Fourth District’s Div. One, San Diego Superior Court Judge Louis R. Hanoian, and Imperial Superior Court Judge William D. Lehman.
In the latest filing by his lawyer, it is put forth that even if Johnson did make sexual advances toward a female colleague—as alleged in connection with creating a hostile work atmosphere at the Court of Appeal—that’s a private matter, outside the ambit of public concern.
While it is acknowledged by the defense that Johnson is not blameless, it is urged that in light of his present awareness that he transgressed current behavioral standards and is committed to mending his ways, he should not be dealt with harshly. That will be up to the CJP which, if it determines that the masters’ findings are supported by clear and convincing evidence, may remove Johnson from office, censure him or publicly admonish him—subject to discretionary review by the California Supreme Court—or impose private discipline.
Allegations by Chaney
CJP staff attorney Emma Bradford, who acted as an “examiner” for the commission at the hearing, devotes the first 28½ pages of her 179-page proposed findings of fact and conclusions of law to “Count One”: allegations by Court of Appeal Justice Victoria Chaney of persistent harassment of her by Johnson, a colleague in Div. One. Chaney’s charges include Johnson repeatedly proposing that they engage in an affair, though both are married, touching her inappropriately, and uttering highly improper remarks of a sexual nature.
Chaney and Johnson were both confirmed by the Commission on Judicial Appointments on July 1, 2009, and began working together the following month; Chaney was sworn in on the spot, but Johnson delayed taking office until Aug. 3 in order to finish up work as a U.S. magistrate judge for the Central District of California.
One of Johnson’s two lawyers in the CJP proceeding, Paul S. Meyer of Costa Mesa, filed a 153-page document, with 33½ pages devoted to Count One, and with various references to Chaney in other portions of the text.
Bradford portrays Chaney as a victim with unquestionable veracity, and Meyer depicts her as a liar.
The commission’s lawyer asks the masters to declare, in connection with the first of 10 allegations by Chaney (a sexist remark in their initial telephone conversation in 2009):
“We find Justice Chaney’s testimony to be credible and that she had no motive to lie. Justices Frances Rothschild, Thomas Willhite, and Elwood Lui testified that Justice Chaney was honest, and that they never had any reason to doubt her honesty….Former Presiding Justice Robert Mallano testified that he had the utmost respect and regard for Justice Chaney’s truthfulness, veracity, and honesty.”
Meyer seeks to impeach her overall credibility by pointing to a letter she and Mallano signed in 2014 in support of Johnson’s appointment to the California Supreme Court. The lawyer asserts:
“When asked if she believed that a serial sexual harasser should be on the high court, Justice Chaney stated that in light of her belief that his action involved only her, ‘it was ok by me.’…The logical and fair inference of that particular statement is that Justice Chaney believes that it is either acceptable to lie to the Governor and/or his staff about a potential judicial appointment or that her assessment of her own current allegations about Justice Johnson from 2009 to 2014 is that they are not true.”
Bradford solicits findings by the masters that Chaney’s testimony was credible and calls for a legal conclusion that “Justice Johnson’s conduct was prejudicial misconduct.” Meyer insists no misconduct was established.
Hostile Work Environment
While the CJP lawyer maintains that “Justice Johnson’s conduct created a work environment for Justice Chaney that was hostile or abusive on the basis of sex,” Johnson’s attorney counters not only that the alleged conduct was not proven, but that, with respect to two of the charges, they would not amount to matters of which the commission could take cognizance, even if they were established.
As to the alleged exhortations by Johnson to Chaney that they commence an affair, Meyer asks that the masters declare:
“One justice asking a colleague to have an affair, in private, which does not involve or affect any matter before the court, does not constitute a violation of the canons. Without an improper purpose affecting the administration of justice, or conduct which would appear to demean the judiciary, no violation is found.”
Count One (¶E) of the notice of charges advises Johnson:
“Between approximately January 2010 and June 2018, you repeatedly hugged Justice Chaney, and, while hugging her, pressed against her and put your hand on one of her breasts. On some occasions when you hugged Justice Chaney and touched her breasts, you made comments such as, ‘Mm-hmm,’ and ‘You feel good,’ or words to that effect.”
Meyer asks that the masters proclaim:
“There is no willful misconduct by the conduct, even if proved. Private social contact between two colleagues, not related to a judicial act and with no evidence of bad faith as defined, does not constitute willful misconduct or prejudicial misconduct.”
Among those in the parade of witnesses against Johnson were California Highway Patrol Officer Tatiana Sauquillo—who, the CJP alleged, was the target of conduct by Johnson that was “unwelcome, undignified, discourteous, and offensive, and that would reasonably be perceived as sexual harassment or as bias or prejudice based on gender”—and attorney Roberta Burnette, to whom he purportedly made highly crude remarks at a bar event.
Johnson has denied the charges, and Meyer seeks to have them disregarded based on a lack of substantiation.
While acknowledging mistakes by his client, the lawyer—repudiating the testimony of Chaney, Sauquillo and Burnette—asks the masters to announce:
“There is no question but that on occasion. Justice Johnson’s personal comments, curiosity and interests overstepped boundaries causing discomfort on the part of staff and others in the legal community. His interests in developing relationships for appropriate reasons and with good will does not excuse the failure to observe the changing mores and social sensitivities. Times have changed: everyone, including judicial officers, must adapt. There is also no question but that other characterizations of Justice Johnson’s conduct and comments have been influenced by an unfortunate contagion of rumor and gossip. This has made the task of separating the proved from the unproved all the more difficult. We do not find by clear and convincing evidence that Justice Johnson made rude and grotesque comments alleged by Justice Chaney, Officer Sauquillo and Ms. Burnette, or acted in unwelcome touching as alleged in this matter. Nevertheless, the conduct of Justice Johnson in those allegations which have been proved, has violated the Judicial Canons of Ethics, and should be addressed accordingly.”
Earlier Alleged Misconduct
Johnson was a magistrate judge from 1999-2009. The Third Amended Notice of Formal Proceedings includes five instances of alleged misconduct on his part in the period from 2004-08.
Meyer takes the position that the CJP has no authority over federal judges, drawing attention to the CJP’s declaration on its website that “[t]he commission does not have authority over federal judges, judges pro tern or private judges.”
Bradford does not disagree with the proposition that there’s no CJP jurisdiction over federal judges, but puts forth that “[t]he commission has authority to discipline a justice for conduct that occurred before the justice became a state justice.”
Johnson’s lawyer says that, in any event, disciplinary action against Johnson based on conduct prior to 2009 is time-barred. He points to Art. VI, §18(d)(2) of the California Constitution—which provides that the CJP may “censure a judge…or remove a judge for action occurring not more than 6 years prior to the commencement of the judge’s current term…”—and comments:
“The current term of Justice Johnson commenced January 1, 2015. No conduct before January 1, 2009 may be considered in this matter.”
The constitutional provision, Bradford points out, “refers to the commission’s authority to censure and remove judges…, and not to public or private admonishments, for which there is no time limitation.”
No appellate court jurist since the commission came into existence in 1961 has faced the prospect of an ouster for misconduct. California Supreme Court Marshall F. McComb, after a 50-year judicial career, was removed in 1977 by a makeshift Supreme Court panel—comprised of Court of Appeal justices, sitting pro tem—but not stemming from misconduct; the aged jurist displayed signs of senility.
If Johnson is not ejected by action of the Judicial Branch, he would still face the prospect of being ousted by the Legislature under dormant powers. State constitutional procedures for impeachment and removal, predating creation of the commission, remain.
Los Angeles attorney Michael J. Avenatti—who is facing criminal charges including allegedly seeking to extort more than $20 million from Nike—is fighting to retain his California law license, which the State Bar wants deactivated in light of the accusations.
A status conference slated for Dec. 16 was not held, with proceedings continuing at a slowed pace.
The State Bar on June 3 filed a petition with the State Bar Court to place the celebrity lawyer on involuntary inactive status. Disciplinary charges were filed July 29.
However, proceedings were abated on Sept. 17 in light of pending criminal charges in the U.S. District Court for the Central District of California. Trial is slated to begin in that action on May 19.
For Avenatti to be placed on inactive State Bar status, Supervising Hearing Judge Yvette D. Roland would have to make a finding, pursuant to Business and Professions Code §6007, that the lawyer “has caused or is causing substantial harm to the attorney’s clients or the public” and that there is a “reasonable probability” that pending disciplinary proceedings against him will result in his disbarment.
It is contended by the Office of Trial Counsel that Avenatti “intentionally and dishonestly misappropriated nearly $840,000” of client Gregory Barela’s settlement funds, of which $710,000 is still owed.
Avenatti’s response says:
“Importantly, none of the allegations made by Gregory Barela, the complainant in the State Bar’s disciplinary proceeding, or the allegations in the pending criminal proceedings, has been proven to be true.”
He asserts that Barela received his agreed-upon share of the $1.9 million settlement in an intellectual property matter, and remarks:
“The evidence will show that Mr. Barela’s credibility is severely lacking, and that he has a lengthy negative history of fabrication of false ‘facts.’ ”
The complaint notes that “there are criminal matters pending against respondent in the United States District Court for the Southern District of New York and the United States District Court for the Central District of California involving bribery and embezzlement of client funds.”
The prosecution in the Central District of California involves the alleged embezzlement of funds belonging to four clients, including Barela.
One criminal action against him in New York is based on Avenatti’s purported attempt to extort more than $20 million from Nike. He is also being prosecuted for allegedly cheating clients, including pocketing $300,000 in an advance to porn star Stormy Daniels in connection with her book, “Full Disclosure.”
Avenatti, who has handled a number of high-profile cases, represented Daniels—whose actual name is Stephanie Clifford—in her actions against President Donald Trump to skirt a 2016 nondisclosure agreement she signed in connection with a $130,000 pay-off for agreeing not to talk publicly of their affair in 2006. He also handled her action against the president for defamation.
Senior United States District Judge Deborah A. Batts of the Southern District of New York on Sept. 17 denied Avenatti’s motion for a transfer of the case involving Daniels to the Central District of California. She said:
“This case is a straightforward fraud case involving one victim, concerns a narrow course of conduct that lasted for approximately eight months, and was brought as a two-count Indictment,” adding:
“On the other hand, the California Prosecution involves five victims, concerns a wide array of alleged criminal conduct, including, but not limited to, tax, bank fraud, obstruction, and false statements offenses that lasted over a five year period, and was brought as a 36-count Indictment.”
Layfield has been released on bail and is presently residing in Delaware. He is facing trial in the U.S. District Court for the Central District of California on charges of mail fraud and money laundering,
The prosecution began in connection with Layfield pocketing settlement funds belonging to Josephine Nguyen, who was a client of the erstwhile law firm of Layfield & Barrett. She was to receive 60 percent of a $3.9 million settlement of her personal injury claim, amounting to $2.3 million.
A superseding indictment expanded the scope of the prosecution to include tax evasion and fraud for 2016 and 2017.
The defendant, apprehended in New Jersey in March, 2018, and incarcerated until August of that year, had previously fled to Costa Rica.
Attorney Anthony M. Solis, on Aug. 17, 2018, filed an emergency motion for an order modifying the terms of Layfield’s release to permit him to leave his residence to attend classes, paving the way for him to obtain a commercial driver’s license so he could seek employment as a truck driver. The motion was granted and he completed a seven-week course. On Oct. 16, District Court Judge Michael W. Fitzgerald of the Central District of California granted a motion permitting him to accept employment with a trucking company.
Layfield was suspended from law practice by the State Bar of California after he failed to show up for his Jan. 24, 2018 disciplinary hearing. The State Bar Office of Chief Trial Counsel filed disciplinary charges against him on Sept. 20, 2017, alleging that the attorney misappropriated more than $3.4 million from his clients. He was disbarred Oct. 27, 2018.
Layfield acknowledges moving funds from the attorney-client trust account to his erstwhile firm’s general fund, but insists he thought there was enough money in the coffers to cover the clients’ shares of settlements. He ascribes blame to others, including the State Bar prosecutor.
On Dec. 10, 2019, the Senate by a 53–40 vote confirmed the nomination Patrick J. Bumatay, an assistant United States attorney for the Southern District of California, to replace Judge Carlos Bea, who is assuming senior status.
The following day, the Senate confirmed the nomination of Lawrence VanDyke, a deputy assistant attorney general for the Environment and Natural Resources Division of the Department of Justice, to succeed Judge Jay Bybee, who goes on senior status today.
There are presently no vacancies.
There are nine vacancies.
The most recent nominations—on Nov. 21—were those of John W. Holcomb, a partner with Greenberg Gross in Costa Mesa, and Steve Kim, a U.S. magistrate judge on the District Court for the Central District of California. Holcolm would replace Judge Dean D. Pregerson, who took senior status, and Kim would succeed Judge Beverly Reid O’Connell, who died Oct. 8, 2017, at the age of 52.
The latest vacancy was created July 5 when Judge Andrew J. Guilford went on senior status. There is no nominee to take his spot.
Judge S. James Otero assumed senior status Dec. 30, 2018. Los Angeles Superior Court Judge Fernando Aenlle-Rocha is the nominee for the office. He faced a Dec. 4 hearing by the Senate Judiciary Committee on his nomination.
Judge Manuel Real, 95, assumed senior status on Nov. 4, 2018, after 52 years on the bench, and died June 26, 2019. Jenner & Block’s former Los Angeles managing partner Rick Lloyd Richmond is the president’s choice for the post.
Judge George H. King retired Jan. 6, 2017. Trump has nominated Mark C. Scarsi of Milbank, Tweed, Hadley & McCloy to take King’s seat.
Judge Christina A. Snyder took senior status Nov. 23, 2016. Los Angeles Superior Court Judge Sandy Leal has been nominate to succeed her.
Judge Margaret Morrow took senior status Oct. 29, 2015, and subsequently left the bench to become president and chief executive of Public Counsel. The president has named Jeremy B. Rosen of Horvitz & Levy to replace Morrow.
Judge Audrey B. Collins resigned Aug. 1, 2014 to join the state Court of Appeal for this district. Los Angeles Superior Court Judge Stanley Blumenfeld has been nominated to succeed her. The Senate Judiciary Committee on Nov. 13 held a hearing on the nomination.
There are no vacancies.
There are no vacancies, and there are no new assignments of pro tems to assist the court. Retired Orange Superior Court Judge Kim G. Dunning remains on assignment until she finishes her work on cases.
Seats in other districts are filled.
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