Aug.
30, 1996
Page
6
PERSPECTIVES
(Column)
Judge Demonstrates Astute Political Timing—but
Breaches Local Rule
By ROGER M. GRACE
Timing. In politics, as in comedy, it means a lot.
Some political maneuvering at the Citrus Municipal Court earlier this month reflected expert timing by the then-presiding judge, Michael Duggan. He managed to bring about the election of his compatriot Patrick Murphy as presiding judge of the court just in time for that election to be noted in the candidate statement of Murphy, who is in a run-off for a Superior Court open seat.
"LEADERSHIP—JUDGE MURPHY was unanimously elected Presiding Judge," the statement trumpets.
The election of Murphy took place Aug. 5. Candidate statements were due Aug. 9.
Duggan's calling of a meeting of judges on Aug. 5 for the purpose of electing a presiding judge (and assistant presiding judge) reflected timing that was shrewd. It reflected, also, machiavellian mischief. Under the court's local rules, the election of a presiding judge was not to be held until Sept. 9.
Here's what Rule 2.01 says:
"On the second Monday in September of each year the annual meeting of the duly appointed or elected judges who are then members of this court shall be held for the purpose of electing a Presiding Judge for the next ensuing term of one year...."
There was nothing remarkable about Murphy emerging as his colleagues' choice for 1997 presiding judge. He was the seniormost judge of the court who had not yet held that post. But the election of him 35 days early, when this clearly provided a campaign advantage for him, was not only irregular but underhanded. It was Duggan who called the premature meeting.
Judge Dennis Aichroth, who was elected assistant presiding judge, told me yesterday that Duggan did give a reason for calling the meeting earlier than the local rule dictates. "His explanation was that some of the judges would be on vacation in September," Aichroth said.
Even if credence is put in the explanation, it remains that the need to avoid the appearance of impropriety would dictate that the election have been postponed, rather than hastened, when the inevitable effect of hastening of it would be to provide a benefit to a political campaign.
Also at the Aug. 5 meeting, Duggan announced that he was resigning as presiding judge. He explained, according to a source, that "he had accomplished everything he wished to accomplish."
Murphy was elected to fill out the balance of his term. This, of course, permits Murphy to ballyhoo in his campaign that he holds the post of presiding judge. In abdicating, Duggan afforded his colleague a further political advantage.
This benefactor of Murphy was unsuccessfully challenged in the March primary. Lending Duggan's campaign effort $10,000 was Murphy...who is now the beneficiary of Duggan's altruism in making a gift of his post as PJ. This reciprocation of kindness is heartwarming, isn't it?
According to one insider, in light of Duggan's resignation as PJ, the judges "felt there was no reason Judge Murphy shouldn't start early."
Well, there was a reason. His enthronement was in derogation of the court's local rules.
Under Rule 2.01(d), the assistant presiding "shall have all of the powers and duties of the Presiding Judge while serving during the absence or disability of the Presiding Judge, or vacancy in the office of the Presiding Judge." Murphy was not the 1996 assistant presiding judge; Michael Rutberg was.
Rutberg, whose term of office as a judge expires Jan. 5, opted not to seek reelection. Since May 1, he's been assigned to the Superior Court's district facility in Compton. For him to serve as Citrus Municipal Court presiding judge would obviously be impracticable. Nonetheless, under the rules, the powers of presiding judge would devolve upon him.
Rutberg could have been removed as assistant presiding judge under local rule 2.01(e) which says that "a majority of the judges at any time may call a special meeting for the removal, election or confirmation of the Presiding Judge or Assistant Presiding Judge for the balance of the unexpired term." But that rule was not invoked. The Aug. 5 meeting was not brought about by an action of the majority of judges; as Murphy told me Wednesday night, Duggan called it. It was not called for the purpose of ousting Rutberg, and no motion was made, let alone carried at the meeting, to do so.
Of course, Rutberg could have declined to assume the duties of presiding judge. But he wasn't given that opportunity. He knew nothing about the musical chairs game in Citrus until after it occurred.
Rutberg says he had heard that a judges' meeting was to take place and had advised the court's judicial secretary as to days when he could make it.
"They were going to notify me," he recounts. But no notification came, he says.
Rutberg relates that he came by the Citrus courthouse to pick up his mail, as he does once or twice a week, and found out about the election after it had taken place.
"I saw a memo...saying Aichroth had been elected assistant presiding judge and Murphy presiding judge," he says.
The jurist says, however, that he's not upset about being left out of the election process.
"I may have felt a little odd but I don't have any resentment," he remarks.
It remains that Rutberg was elected as assistant presiding judge for the calendar year. While Murphy had been dubbed "acting assistant presiding judge" at an April meeting of the judges, Rutberg never relinquished the post of assistant presiding judge nor was it yanked from him. On Aug. 5, upon the abdication of Duggan, Rutberg automatically succeeded to the powers of presiding judge.
The Citrus Municipal Court chapter of the Murphy-for-Superior Court club, presided over by Duggan, was apparently so absorbed in its efforts to provide a political advantage to their candidate that it could not be bothered by what the local rules dictated.
Thus, political expediency took place over legality. Of all places this should not occur is the courthouse.
ILL-CONSIDERED CONTENTION: On Tuesday, a hearing will be held before Los Angeles Superior Court Judge Diane Wayne on the writ petition brought by Murphy's campaign rival, Los Angeles Municipal Court Judge Karl Jaeger. Jaeger is seeking an order that statements which he contends are deceptive be excised from Murphy's candidate statement.
There surely is merit to Jaeger's challenge to Murphy's statement that he's a judge of the "Municipal Court of Los Angeles County," implying as this does that he's a judge of a county-wide court. And there's merit to his protest over Murphy referring to himself as a "Law Professor" when he holds only the position of an adjunct associate professor of law. However, some of the other points raised in the petition are of debatable merit, or clearly lack merit.
The Judicial Council's 1996 Annual Report would seem to refute Jaeger's suggestion that Murphy exaggerated in saying in the candidate statement that he "has presided over thousands of Civil and Criminal matters, hundreds of Trials...." The report shows that in the fiscal year of 1994-95, the per-judge averages in the Citrus Municipal Court were 10,772 dispositions (putting it 20th in rank in the state) and 545 contested trials (10th in rank).
Murphy has been a member of that court since Jan. 3, 1993. It would appear that he has, in fact, handled thousands of matters and hundreds of trials.
Of course, the burden is not on Murphy to refute the allegations, but on Jaeger to establish them. The papers filed on Jaeger's behalf by attorney Brad Hertz fall far short of doing that with respect to these particular allegations.
The memorandum of points and authorities in support of the writ petition says that it is "unlikely" that Murphy has handled "thousands" of matters, but confesses that the petitioner "cannot prove that Murphy's statement is false." It alleges that the statement is, however, "misleading in its vagueness" because it does not tell how many thousands.
It states that Murphy's claim of having handled "hundreds" of trials "may very well be false," but in any event is misleading, also because of vagueness.
Murphy's attorney, Paul N. Jacobs, scoffed in his response:
"There are absolutely no cases, administrative decisions or State Bar Advisory Opinions that require, or even suggest, that a candidate for judicial office must precisely quantify numbers in a candidate statement."
He's right.
And he's also right in pooh-poohing Jaeger's assault of like nature on Murphy's representation that he has signed search warrants "resulting in the seizure of millions of dollars of property and tons of drugs."
Jaeger also challenges Murphy's statement that he was "appointed by the Supreme Court's Chief Justice to hear Superior Court cases." Hertz wrote: "This statement causes the reader to believe that Murphy was specifically selected by the Chief Justice to hear Superior Court cases, even though he is a Municipal Court Judge, and that a great honor has been bestowed upon him."
In truth, all Municipal Court judges are under a blanket cross-assignment.
Murphy's statement is literally true (though "assigned" should have been used instead of "appointed"), yet it is, for the reason Hertz spelled out, misleading. Elections Code Sec. 13313(b)(1) authorizes the deletion of matter from a candidate statement which is shown by clear and convincing evidence to be "misleading." This statement would seem to meet the test, though the deception here is by no means so gross as where Murphy links himself to a non-existent court and to a title he does not hold. Whether Murphy's proclamation that he is "not a political appointment" necessarily implies that Jaeger was, thus running afoul of the statutory edict that the opponent may not be attacked in a candidate statement, might be argued either way.
Tuesday's hearing should be a lively show.