September / October 2009 - Sacramento County Bar Association

sacbar.org

September / October 2009 - Sacramento County Bar Association

September/October

2009

Sacramento

county Bar

aSSociation

maGaZine

JUDGE OF

THE YEAR

James Mize

Cover photo by Sirlin Photography

www.sacbar.org

Elections

UCD Dean Kevin Johnson

Peter Orner Discusses Literature,

the Arts, and Civil Rights


Editor’s Message

It

seems every time we turn around there is another

election taking place. First we have presidential

elections every 4 years, and congressional and legislative

elections every 2 years. Then we have municipal elections,

and elections for school boards, water boards, etc. In addition,

there are special elections to fill vacated seats or for tax

or other initiative ballot measures. If there is such a thing as

voter saturation, it sure didn’t affect the last presidential

election, as nearly 80 percent of registered voters in

California went to the polls.

Compared to the protests that followed the presidential

election in Colombia earlier this year and the violence that

erupted after the presidential election in Iran this summer,

elections in this country seem relatively calm. Although

campaigning can get somewhat nasty and rude at times,

American elections usually occur with little fanfare and election

disputes in this country are peacefully resolved in the

courts. For example, in 2000 the United States Supreme

Court had to resolve who the winner was in the 2000 presidential

election; and more recently, the senate race in

Minnesota between Senator Norm Coleman and Al

Franken has been in the courts for over six months.

The news media seem to have a fascination with elections

and are always eager to tell us more than we care to

hear about them. Such media coverage is generally the only

view we have of the election process. But the perspective we

get from the news media is somewhat biased in that it sim-

ply reflects reporters’ perceptions and interpretation of

events, looking in from the outside.

This Elections issue, on the other hand, presents a

unique look at various aspects of elections from an insiders'

point of view. That is, these articles are all written by people

who participated in the election process in one way or

another, and are telling you their own story.

Assemblymember Alyson Huber writes about what it

was like to win an upset election, and not to know the

results until three weeks after the election. Luis Céspedes

reflects on his experiencíi03'K-gím9lk•-•3dKy…e–0K-gkïlnm•-•3dKy

EDITOR-IN-CHIEF

Heather Cline Hoganson

editor@sacbar.org

TEXT EDITOR

Larry Duran

SACRAMENTO LAWYER POLICY COMMITTEE

Helene Friedman

Coral Henning

Yoshinori H.T. Himel

Heather Cline Hoganson

Christopher Krueger

Jack Laufenberg

COURTHOUSE STEPS

steps@sacbar.org

SURFING FROM RIVER CITY

Coral Henning (916) 874-6013

chenning@saclaw.org

ADVERTISING - EVENTS

MEMBER CLASSIFIED ADS

Michelle Bender (916) 564-3780 x200

reception@sacbar.org

DESIGN AND LAYOUT

Mary Burroughs Studio.com

MJBdesign@aol.com

EXECUTIVE DIRECTOR

Carol Prosser

OFFICERS

Mike Mills - President

R. Todd Vlaanderen - 1st Vice President

Michael Levy - 2nd Vice President

Vacant at press time - Secretary Treasurer

BOARD OF DIRECTORS

DIRECTORS AT LARGE

Aldon Bolans

Jonathan Ellison

Helene Friedman

J. Michelle Hahn

Christine Jacobs

Marilee MacDonald

Laura Marabito

Lehoa Nyguen

John Wagner

SACRAMENTO LAW FOUNDATION

Kimberly Lewellen, saclawfoundation.org

AFFILIATE REPRESENTATIVES

Asian Bar Association (ABAS)

Kathryn Doi

Barristers’ Club

Dan Stouder

Federal Bar Association

Jean Hobler

Capitol City Trial Lawyers

Kerri Webb

Saint Thomas More Society

of Sacramento (STMS)

Bruce Timm

Sacramento Lawyers for

the Equality of

Gays and Lesbians (SacLegal)

Patrick Hostine

South Asian Bar Association

Shama Mesiwala

Wiley Manuel Bar Association

Jean-Pierre Francillette

Women Lawyers of Sacramento

Patricia Sturdevant

2 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


SACRAMENTO

COUNTY BAR

ASSOCIATION

MAGAZINE

Table of Contents

V O L U M E 1 0 9 , N U M B E R 6 • S E P T E M B E R / O C T O B E R 2 0 0 9

COVER STORY

20 Presiding Judge Mize is selected Judge of the Year

PROFILE

16 New UCD Dean Wants to be Loud and Clear

ELECTION LAW

22 Why Every Vote Counts: Reflections on my Close Race

24 Lawyers' Role in Voter Protection Program:

Obama for America 2008

26 Anatomy of a Local Tax Ballot Measure:

The City of Sacramento's “Communications User Tax”

28 The Role of the Legislative Analyst's Office in the Ballot

Measure Process

30 Reflections on Political Reform in California

LITIGATION

8 Making and Opposing Motions to Set Aside a Default -

Part 1

11 View from the Civil Bench: Civil Jury Instructions,

Part 3 - Juror Questions During Deliberations

SECTION & AFFILIATE NEWS

4 Constitutional Law & Civil Rights Section's Upcoming

Distinguished Lecture Dinner with Peter Orner - A Preview

32 Presiding Judge Encourages Lawyers To Speak Out On

Importance Of Independent Judiciary

COMMUNITY SERVICE

34 Help Bring Citizenship Alive through Law Education!

35 Sacramento Teacher Honored as California Mock Trial

Adult Advocate of the Year

37 VLSP: A Change of Venue and Some Overdue Recognition

16

DEPARTMENTS

2 Editor's Message

6 President's Message

14 Law Library News

13 Surfing from River City

37 Calendar

37 Index to Advertisers

4

20

Sacramento Lawyer welcomes letters and article suggestions from readers. Please e-mail them to editor@sacbar.org. The Sacramento County Bar Association reserves the right to edit

articles and letters sent in for publication. Please contact SCBA 916-564-3780 x200 for deadline information, fax 916-564-3737, or e-mail reception@sacbar.org. Web page: www.sacbar.org.

Caveat: Articles and other work submitted to Sacramento Lawyer become the copyrighted property of the Sacramento County Bar Association.

Returns of tangible items such as photographs are by permission of the Executive Director only, by pickup at the SCBA office only.

LaRaza

Michael Terhorst

COMMITTEE / SECTION

REPRESENTATIVES

Lawyer Referral and Information

Service (LRIS)

Don Hansen

Conference of Delegates

Emory King

Indigent Defense Panel (IDP)

Kevin Adamson

Section Representative

Daniel Yamshon

Voluntary Legal Services

Program (VLSP)

Victoria Jacobs

SECTIONS

Administrative Law

Robert S. McWhorter

Alternative Dispute Resolution

Ken Malovos

Appellate Law

Brendon Ishikawa

Bankruptcy &

Commercial Law

Phil Rhodes

Business Law

BJ Susich

Children’s Counsel

Diane Wasznicky

Constitutional Law & Civil Rights

Joshua Kaizuka

Environmental Law

Keith Wagner

Family Law

Jeff Posner

Health Care

Brian Taylor

Intellectual Property

Glen Gross

Labor & Employment Law

Teri Block

Probate & Estate Planning

Bruce Hudson Towne

Real Property

Tammy McCabe

Tax Law

Keith Pershall

Worker’s Compensation

Martin Beaver

COMMITTEES

Bylaws

BJ Susich

Continuing Education of the Bar

Daniel Yamshon

Diversity Hiring and Retention

Linda Partmann

Fee Arbitration

Jan Karowsky

Judicial Review

Philip R. Birney

Judiciary

Diane W. Wasznicky

Long Range Planning

Bunmi Awoniyi

Pictorial Directory

Helene Friedman

Sacramento Lawyer Policy

Heather Hoganson

Sacramento Lawyer (USPS 0981-300) is

published bi-monthly by the Sacramento

County Bar Association, 1329 Howe

Avenue, #100, Sacramento, CA 95825. Issn

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included in membership dues, or $24.00

for nonmembers. Periodicals postage paid at

Sacramento, California. Postmaster: Send

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1329 Howe Avenue, #100, Sacramento, CA

95825. Copyright 1999 by the Sacramento

County Bar Association.

Each author’s commentary reflects her or

his individual opinion only and not that of

their employer, organization with which

his/her is affiliated, or Sacramento Lawyer

magazine, unless otherwise stated.

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

3


The Sacramento County Bar Association's

Constitutional Law & Civil Rights Section is gearing

up for its annual Distinguished Lecturer Dinner. Last year's

event featured a thought provoking lecture by James

Brosnahan titled “Is there such a thing as an activist Judge”

This year's event will take place at Sofia’s restaurant (located

at 11th and H Streets) on October 14, 2009. We are

delighted to announce that Distinguished Lecturer this year

will be award winning author and attorney Peter Orner.

Mr. Orner will discuss the Voice of Witness program and

the intersection between literature, the arts, and civil rights.

The New York Times review of Peter Orner’s first book,

Esther Stories, described the diverse cast of individuals presented:

“Orner doesn’t simply bring his characters to life, he

gives them souls.” Most recently, Orner edited a powerful

collection of oral histories about the lives of the undocumented

in the United States (Underground America:

Narratives of Undocumented Lives, 2008). Each of his books

has been utterly original and revelatory, illuminating our

world and its inhabitants so convincingly one suspects that

before he became a writer Orner must have had a long, successful

career as an anthropologist as well as a psychologist

and a historian. The truth, however, is that before he

became a writer, Peter Orner became a lawyer.

As an introduction to Mr. Orner's presentation, we are

delighted to present an interview he recently gave to author

Edward Schwarzschild (ES). For more information about

this event, please contact the Section's Chairperson Joshua

Kaizuka (joshua@markmerin.com or 916-443-6911).

* * * * *

ES: You’ve graduated from both the Northeastern

University School of Law and the Iowa Writers' Workshop.

Let’s start with what drew you to law school in the first

place and what that experience was like for you.

PO: Well, I come from a family of lawyers, so maybe

it's in the blood. The lawyer's love of argument, of trying to

solve impossible problems with words. My grandfather was

a lawyer, my father’s a lawyer, my brother has a law degree

(though he’s an animator and cartoonist and doesn’t practice).

But I should say that I had no family pressure; I got

myself into this mess on my own! I very much wanted to be

4 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

Section & Affiliate News

Constitutional Law & Civil Rights

Section’s Upcoming Distinguished Lecture

Dinner with Peter Orner - A Preview

By Edward Schwarzschild

a lawyer and am proud to be one. Law is all about stories,

and I remember in law school really enjoying classes like

trusts and estates where you got to read all about family

squabbles. Often the family stories were heartbreaking;

sometimes they were hilarious. I felt the same way about

torts. All the nutty things we do to each other by being negligent.

Of course maybe I look back on first year with rosecolored

glasses. I can say that I feel lucky that I went to

Northeastern Law School in Boston because the school

focuses on public interest law. So there was a context to

what we were studying; there was always the sense that real

people were being affected by the law--sometimes helped,

often not. Law’s imperfections have intrigued me for a long

time. When someone, like a justice up for the Supreme

Court, for instance, says “I have a lot of respect for the law,”

I laugh a little at this--as if there was this one thing that represented

‘the law.’ For me, the study of law is the study of

people and people can't be reduced to soundbites.

ES: After Iowa, you published two incredible, innovative,

moving works of fiction; also, in 2005, you worked as

a lawyer again, which led you to compile and edit

Underground America for the Voice of Witness series. In

your introduction to Underground America, you say that “as

a writer I believe strongly in the power of stories to render

absurd certain distinctions drawn by our laws. I also have

faith that a reader willing to walk in someone else's shoes

for a while will take more time than a hurried judge to listen

to a life story.” How, to your mind, is the work of a

lawyer similar to the work of a writer How is it different

PO: I meet so many lawyers who say, My God I wish I

was a fiction writer. And I always feel like saying, but you

already are! And the reality is that being a lawyer in particular

involves the shaping and framing of stories. The key

difference--and it’s something that always bothered me--is

that lawyers have to put square stories into round holes. Or

round stories into triangular holes. You get what I mean.

The purpose is so different. You and I want to move people-

-just to move people-- which is a kind of service, I suppose.

Lawyers have to move people--judges, juries, their clients--

for a particular end. So I drifted away from the law because,

frankly, I wasn’t especially great at it. My mind strays. I

wanted to be a criminal lawyer and there are a lot of defen-


ES: Underground America has been published to

wide acclaim, as have several other volumes in the Voice of

Witness series, and now you’re working on a new volume

for the series. Can you tell us some of the experiences

you've had sharing this work with others Have you seen

Before he became a

writer, Peter Orner

became a lawyer

dants out there lucky that I am not their lawyer. This said,

the law has always been on my mind, and after law school

I taught law--human rights at Charles University in Prague

and I also taught for a year at University of California, Santa

Cruz-- so I have kept my hand in. A few years ago, I volunteered

to take on an asylum case and that's how I got

interested in immigration issues.

ES: Compiling and editing oral histories seems to

require great skill as an interviewer. Interviewing also

strikes me as one of many crossover skills that can help

both writers and lawyers. How is interviewing as a writer

different from interviewing as a lawyer

PO: When I write fiction, I tend to hang back and just

watch people and try and imagine their lives. For the

Underground America project I had to get out in front and

talk to people directly, which is a wonderful thing. And

working in non-fiction gives you a reason to ask people

direct questions about their lives because there is a purpose

to it. If you say, I am working on such and such book and

am interested in your life, people understand. If you say, I’m

writing a novel and I'm interested in your childhood memories

of such and such...people look at you a little strange.

A long-winded way of saying that fiction, I think, comes

from somewhere else--somewhere more mysterious for me.

Non-fiction exists in the world--you can get at it directly. I

speak generally of course. Lots of exceptions here!

these books begin to make a difference What hopes do you

continue to have for the books and the series in general

And what do you think a bunch of fellow lawyers and

judges can find in these books

PO: I’ve been gratified about the reception to

Underground. I think there’s a hunger out there for a more

honest approach to talking about immigration. It’s easy, I

think, to lump all undocumented immigrants in one pile,

give them a label, and then say, okay, everybody, let’s solve

this huge problem! But the facts on the ground are a whole

lot different. As we tried to show in Underground, people

come here from all over the globe, for many different reasons,

and they live in every corner of this country. We have

stories in the book from Kansas, Chicago, California, New

Bedford, Massachusetts, Washington state, Houston, and

so on. And when you read about their lives, in their own

words, you get an important perspective, the most important

perspective as far as I am concerned. What I think

anybody can get out of this book--whether you are a judge

or a lawyer or a taxidermist--is this: that we are talking

Continued on page 18

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

5


President’s Message

During the month of September, the Sacramento Nicholson,

County Bar Association holds its annual Bench-Bar

Reception at which our Association bestows the Judge of

the Year Award to one of our

local jurists and we welcome

and recognize all of the

newly appointed judges in

Sacramento County. This

past summer, I was honored

to speak at the swearing-in

ceremony for the newly

admitted attorneys who

passed the February California Bar Examination. Twice a

year, in June and December, our Third District Court of

Appeal provides a beautiful and memorable ceremony for

all newly admitted attorneys and their families. At the most

recent ceremony in June, Justices Harry Hull, George

The Third Branch

In addition to their public service off

the bench, judges have demanding and

difficult jobs that require them to give

up some personal day-to-day freedoms

so that we can enjoy ours fully.

By Mike Mills

and Kathleen Butts presided. The Third

District Court of Appeal's Clerk, Deanna Fawcett, plans

each ceremony months in advance, ensuring a successful

outcome each time. While

attending the June ceremony, I

was once again reminded of

how fortunate we are in the

Sacramento legal community

to have a bench that routinely

serves our community by giving

its time, talent, and experience

outside of the courtroom.

I cannot possibly note all the contributions the bench

has made to the fabric of our legal community, but I want

to take this opportunity to specially thank and recognize the

regular contributors to this magazine, the Honorable Judy

Holzer Hersher and the Honorable Loren McMaster.

Their insight, advice, and shared experiences make this

magazine truly informative and make us better lawyers.

In addition to their public service off the bench, judges

have demanding and difficult jobs that require them to give

up some personal day-to-day freedoms so that we can enjoy

ours fully. I encourage you to recognize their efforts and

thank them by remembering the important role they serve

in our system of government and by speaking out when

judicial independence is threatened. By safeguarding the

independence of the judiciary, we are not only respecting

our republican form of government, but also ensuring that

our judges may continue to undertake their constitutional

role as defenders of our liberty.

In THE FEDERALIST NO. 78, Alexander Hamilton

warned the citizens of New York, “Considerate men, of

every description, ought to prize whatever will tend to

beget or fortify [the independence of judges] in the courts:

as no man can be sure that he may not be tomorrow the victim

of a spirit of injustice, by which he may be a gainer

today.” In honoring all of our local judges during the

month of September, we best honor them by always

remembering the importance of judicial independence to

our system of government.

6 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


8

Anew client appears at your office door, shows you

some “paperwork” and asks for your advice on

what to do. The papers turn out to be a default judgment

that was entered against him in a lawsuit in which he was a

defendant. You agree to represent him and, after receiving

your retainer, you call the plaintiff's attorney to request that

she voluntarily set aside the default. Assuming plaintiff's

lawyer says no, what do you do next What steps should

plaintiff's lawyer take to “save” the default judgment

Hopefully, this series of articles will answer those questions.

My usual disclaimer applies. Nothing herein is to be considered

a local rule of court, an unwritten court rule, or a court policy.

What follows are simply the views of one judge, who reserves

the right to change his mind.

Be Aware of Timing Issues

The first thing for both lawyers to do is check the date that

the default or default judgment was entered. There is a dizzying

array of different deadlines, ranging from three months to no

statutory time limit at all, depending on the nature of the default.

Three to Six Months

A common misunderstanding is that one has six months

to set aside a default or default judgment. While that is the

time period set forth in Code of Civil Procedure § 473(b), it

is far from a fail-safe period. The statute provides that any

such motion must be made within “a reasonable time,” not to

exceed six months, after the default/default judgment or

other terminating order was taken. Code of Civil Procedure §

473(b). In the absence of a good explanation for any delay,

the "reasonable time" standard of section 473(b) has been

construed by the Courts as being no longer than three

months. Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523;

Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1184. See also

Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521,

1524-1525 (motion based on attorney fault).

It is very important to understand that the six month

period is not a statute of limitations. Rather, it is an outside

limit on what can be deemed within “a reasonable time” as

that term is used in Code of Civil Procedure § 473(b).

The universal rule is that the moving party must show

that he or she acted diligently with a plausible explanation

for any significant delay. One court has held that a trial

Litigation

Making And Opposing Motions

To Set Aside A Default - Part 1

SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

By Judge Loren

McMaster

court has a mandatory duty to deny a motion to set aside a

default that is not accompanied by a adequate excuse for

delay, notwithstanding that the set-aside motion was made

within the six month period. Stafford v. Mach, supra, 64 Cal.

App. 4th at 1183 (abuse of discretion for a trial court to

grant relief under section 473 in such circumstances).

Except for cases asserting attorney fault, the six month

period usually is interpreted to begin running from the date of

the default and not from the date of any later default judgment.

Weiss v. Blumencranc (1976) 61 Cal. App.3d 536, 541.

The moving papers for the motion to set aside the default must

be served within the six month period. Hence, a motion to set

aside a default filed, but not served, within the six month period

is untimely. It will be summarily denied. Arambula v. Union

Carbide Corp. (2005) 128 Cal.App.4th 333, 341.

The sixth months is calculated as half of a year, or 182

days, rather than six calendar months. Davis v. Thayer

(1980) 113 Cal.App.3d 892, 903. Courts lack jurisdiction

to extend the six month period. Arambula v. Union Carbide

Corp. supra, 128 Cal.App.4th at 344-345; Jackson v. Bank of

America (1983) 141 Cal.App.3d 55, 59.

180 Days to Two Years

In cases where valid service results in a lack of actual notice;

such as substituted service where the summons and complaint

physically served and mailed fails to reach the defendant, relief

from a default judgment may be obtained beyond the six

month period. Code Civ. Proc. § 473.5. As with motions under

473(b), the relief must be sought “within a reasonable time.”

The outside time limit for obtaining relief in this situation

is two years after entry of the default judgment, or 180

days after service of written notice of entry of the default or

default judgment, whichever is the earliest.

In those cases where there has been no valid service of the

summons and complaint on the defendant, but the judgment

otherwise appears valid on its face, courts have applied the

time limits of Code of Civil Procedure § 473.5. Rogers v.

Silverman (1989) 216 Cal.App.3d 1114 (wrong person served).

No Statutory Time Limit

There is no time limit (except for laches) to set aside a

void judgment, such as one entered after no service of

process on anyone; where there is a lack of personal or sub-


ject matter jurisdiction; or where the court acts in excess of

its jurisdiction. Code of Civil Procedure §473(d).

Similarly, the Court may exercise its equitable powers to

determine that a judgment obtained by extrinsic fraud or mistake

is void and subject to being set aside at any time. Code

of Civil Procedure § 473(d); Moghaddam v. Bone (2006) 142

Cal.App.4th 283. However, relief is conditioned on a showing

of diligence and a meritorious defense, as well as a plausible

explanation for not responding to the lawsuit.

Did the Default Comply with

Applicable Procedural Requirements

In the event that the default judgment is entered months

after the entry of the default, there is a second six month

period to set aside a default judgment. However, even if the

default judgment is set aside, this does not necessarily

resolve the problem. The default entered by the clerk

remains in place. This raises the possibility of a second

default judgment on the same complaint.

A default judgment requires that the complaint or statement

of damages (where applicable) has given proper

notice of the amount sought. Where there is proper notice

of the amount sought, the Court routinely renders judgment

in that amount once a default has been entered.

If a complaint, other than for personal injuries or

wrongful death, failed to give proper notice of the amount

sought in the complaint, no valid default judgment can be

entered. Plaintiff is required to amend the complaint to cure

the defect and properly serving such amended complaint

on the defendant. The amended complaint opens up the

default and gives defendant an opportunity to avoid a

default judgment by timely filing a responsive pleading.

The motion papers to set aside a default must include a declaration

or other admissible evidence of the defendant's lack of

knowledge that was not due to defendant's purposeful avoidance

of service or to inexcusable neglect. See Anastos v. Lee

(2004) 118 Cal.App.4th 1314, 1319. The papers must also

include a memorandum of points and authorities and a proposed

responsive pleading. Code of Civil Procedure § 473.5(b).

The Court may condition relief on such terms that may

be just, usually to avoid prejudice to the plaintiff. Goya v.

P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 894.

However, when the evidence shows that the defendant is

free from fault, it would be improper to condition relief on

defendant's payment of money to plaintiff.

Review Complaint and

Statement of Damages

The relief granted to a party seeking a default judgment

cannot exceed the amount that is demanded in the complaint.

Code Civ. Proc. § 580: Greenup v. Rodman (1986) 42

Cal.3d 822, 824. Except in personal injury and wrongful

death cases, the amount of damages must be stated in the

complaint. Code Civ. Proc. § 425.10.

In contract actions entry of a default judgment is limited

to “the principal amount demanded in the complaint . .

. ." Code Civ. Proc § 585(a). In actions other than contract,

a default judgment may be granted based on the evidence

submitted for the relief sought by plaintiff “not exceeding

the amount stated in the complaint, as appears by the evidence

to be just." Code Civ. Proc. § 585(b).

“[A] prayer for damages according to proof passes

muster under section 580 only if a specific amount of damages

is alleged in the body of the complaint.” Becker v. S.P.V.

Construction Co. Inc. (1980) 27 Cal.3d.489, 494. The Becker

court noted that “[t]he notice requirement of section 580

was designed to insure fundamental fairness. . . . If no specific

amount of damages is demanded, the prayer cannot

insure adequate notice of the demands made upon the

defendant.” 27 Cal.3d at 494.

The Court is without jurisdiction to enter a default judgment

that exceeds the amount demanded in the complaint.

National Diversified Services, Inc. v. Bernstein (1985) 168

Cal.App.3d 410, 417. If the prayer for damages is stated as

“damages in excess of $20,000,” the default judgment is

limited to $20,000. Id. at 494.

Except for personal injury and wrongful death cases, a

statement of damages cannot be used to supply the required

notice of the amount sought. Levine v. Smith (2006) 145

Cal.App.4th 1131. The Levine case is instructive. In that

case the plaintiff obtained a default judgment of $2.5 million

for legal malpractice against Smith. The complaint did

not set forth the amount of damages sought, but plaintiff

filed and served a Statement of Damages prior to the default

judgment hearing seeking $5.6 million in general damages

and $3 million in punitive damages.

When Levine sought to enforce the judgment a year and

a half later, Smith successfully moved to set it aside. Smith

successfully argued that no specific amount was set forth in

the complaint and the statement of damages did not apply

since the lawsuit concerned alleged legal malpractice and

not personal injury or wrongful death. The Court of Appeal

agreed. The court held the judgment was in excess of the

court's jurisdiction and void. Thus, Smith was not limited to

a specific time period to seek to set it aside.

In any default prove-up hearing, the plaintiff has the burden

of proving the amount of all damages sought by admissible

evidence. In the case of punitive damages, the proper

amount to award can only be determined by admissible evidence

of defendant's net worth. In the absence of such evidence,

plaintiff cannot prove entitlement to punitive damages.

Adams v. Murakami (1991) 54 Cal.3d 105, 119.

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

9


Litigation

By Judge Judy

Holzer Hersher

View from the Civil

Trial Bench

he Sacramento County Superior Court inaugurated its

Civil Trial Division in January of 2006. These articles

represent the thoughts and opinions of the author and should not

be considered court policy or the opinion of other trial judges.

This is the third in a series of articles on jury instructions and

issues. Comments and suggestions for future articles are welcome

and should be addressed to hershej@saccourt.ca.gov.

Just when you think the trial is over and all you have to

do is wait for the verdict, the jurors send a question to the

court and advise that deliberations have stopped pending

an answer. California Rule of Court 2.1036 provides that

after a jury reports that it has reached an impasse in its

deliberations, the trial judge can address juror confusion or

uncertainty in a number of ways. These include giving

additional instructions, clarifying previous instructions, or

permitting attorneys to make additional closing arguments.

When such a need arises, it is important for trial counsel to

be ready at any time to assist the court. (See Code of Civil

Procedure sections 617 and 134 (a)(1) and (2), which

require that a court remain open for every purpose connected

with the cause submitted to the jury until the jury is

discharged, including holidays and weekends.)

Failure to provide timely and appropriate guidance to

jurors, or providing an improper or misleading response,

can constitute reversible error. (Sandoval v. Bank of America

(2002) 94 Cal.App.4th 1378, 1388-1389; Bartosh v. Banning,

(1967) 251 CA2d 378; Sesler v. Ghumman (1990) 219 CA3d

218.) Just as importantly, attorneys who offer inaccurate

instructions are inviting error that may affect appellate issues

otherwise favorable to their client. (Stevens v. Owens-Corning

Fiberglass Corp. (1996) 49 Cal. App 4th 1645.)

This article provides a framework for counsel to use in

assisting the court when jurors signal problems with jury

instructions during deliberation.

confused by an instruction and need more guidance on its

meaning. Sometimes the question is insightful and points

out an issue the court and counsel have not considered.

This later circumstance may require a new instruction or

the rewriting of one or more previously given instructions.

Before proposing a response, counsel should carefully read

the note from the jurors and discuss it with the court. It

may pose a question that is itself ambiguous or capable of

being answered in more than one way. Sometimes the court

and counsel do not agree what the jury is asking, and thus

the proposed responses are different. If there is disagreement,

ask the court to send a note to the foreperson to clarify

the jury's question or concern, so that it can be appropriately

answered. In short, make sure that you and the

court are providing the jury with the guidance they need.

Is the Rereading of Instructions

all that is Necessary

It is important to distinguish juror questions that call for

the rereading of instructions already given, from those that

require supplemental or revised instructions. When there

are large numbers of instructions, jurors can get lost and

may not focus on the instructions they need to consider for

a particular cause of action or theory. Some juror questions

indicate the jurors do not rea'K-gjíkmn•-•3dKy… –4í•3dKy…u–03

Everyone Should Agree

on the Problem

Sometimes the jurors' note reveals that they are simply

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

11


should advise the jury to disregard the incorrect instruction.

Otherwise, the new or corrected instruction may create

confusion or a clear conflict in the law, leading to reversible

error. (Sandoval v. Bank of America (2002) 94 Cal.App.4th

1378, 1388-1389; Slayton v. Wright (1969) 271 CA2d 219.)

Identify Instructions To Reread That

Avoid Both Error and Prejudice

Jurors are entitled to be reread all instructions that they

request on a particular topic. Failing to reread all instructions

on the topic or area requested amounts to reversible

error. (Davis v. Erickson (1960) 53 Cal.2d 860.) Thus, court

and counsel should insure they identify and read all instructions

that cover the question posed or the area of confusion.

Next, consider whether it is appropriate to ask the court to

reread other instructions as well. This is a good time for

counsel to review the jury packet and double check that all

the necessary instructions have in fact been offered.

Sometimes a juror's question leads to the realization that an

important instruction inadvertently has not been given and

should be read to cure any error. (Weirum v. RKO General,

Inc. (1974) 15 C.3d 40, 50; see also Jensen v. BMW of North

America, Inc. (1995) 35 Cal.App.4th 112.) It is also appropriate

to ask the judge to admonish the jurors not to attach

any particular significance to any instructions that are read

for a second time or, for that matter, any new instructions,

and also to ask that the court remind jurors of their duties

as stated in CACI 5000 (i.e., pay careful attention to all the

instructions).

See if CACI has an Instruction

When a simple rereading of existing instructions is not

enough, a trial court will default to Judicial Council of

California Civil Jury Instructions (CACI) to determine if

there is an existing instruction that addresses the need. The

California jury instructions provided by the Judicial

Council are “the official instructions for use in the state of

California” and their use is “strongly encouraged.” The stated

goal is to “improve the quality of jury decision making

by providing standardized instructions that accurately state

the law in a way that is understandable to the average juror.”

See Cal. Rules of Ct. 2.1050(a) and (e). Before a court will

adopt an attorney's proposed language for an instruction, it

must satisfy itself that: (1) a different instruction would

more accurately state the law and be understood by jurors;

(2) CACI does not contain an instruction on the subject;

and/or (3) the CACI instruction cannot be modified to submit

the issue properly. (Cal. Rules of Ct. 2.1050(e).)

Proposed new instructions should be presented in a

neutral, non-argumentative manner and “should be accurate,

brief, understandable, impartial, and free from argument”

(Cal. Rules of Ct, rule 2.105(e)). Verbatim quotes

Continued on page 18

12 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


Law Library News

Voting Law on the Web

Compiled by Kate Fitz, Public Services Librarian, Sacramento County Public Law Library

From dramatic conflicts like Bush v.

Gore and Coleman v. Franken to the intricacies

of campaign financing, election law is

well-represented on the web.

For an overview of election law issues

in the United States, visit Cornell

University’s “Wex” page at

http://bit.ly/Cyz0W. The page includes

links and discussions of constitutional

amendments, statutes, and court cases

related to election law.

General election law news

and updates

Election Law blog

http://www.electionlawblog.org

Loyola law professor Rick Hasen updates

this blog daily, covering election law, campaign

finance, legislation, voting rights, initiatives,

redistricting, and the Supreme

Court nomination process.

VoteLaw blog

http://www.votelaw.com/blog

Experienced election law attorney Edward

Still’s blog covers “the intersection of politics

and law: redistricting, campaign

finance, the right to vote, election law and

administration, and politicians in trouble.”

California Election Law

http://www.calelectionlaw.com

This page provides resources and news to

California election officials and the attorneys

who represent them. Despite infrequent

updates, it offers a nice list of

resources at http://www.calelectionlaw.com/resources.php.

Findlaw’s Election Law Coverage:

Lawsuits

http://news.findlaw.com/legalnews/lit

/election2004/cases.html

Election Law @ Moritz (Ohio State

University): Major Pending Cases

http://moritzlaw.osu.edu/electionlaw/litigation/index.php

Both sites list lawsuits and investigations,

and provide access to case documents. The

Moritz site’s detailed database of cases and

documents can be sorted by case, state,

topic, or date.

Voting rights and election

administration

California Secretary of State

http://www.sos.ca.gov/elections

offers information for the general public.

Information on qualifying an initiative for

the ballot, and a sample petition, are available

at http://www.sos.ca.gov/elections/elections_h.htm.

U.S. Commission on Civil Rights

http://www.usccr.gov/

U.S. Department of Justice

http://www.usdoj.gov/crt/voting/misc/f

aq.php

These sites provide detailed information

regarding the effects and enforcement of

various federal laws, such as the Voting

Rights Act (1965), the National Voter

Registration Act (1993) (“Motor Voter”), and

the Help America Vote Act of 2002 (HAVA).

U.S. Election Assistance Commission

http://www.eac.gov

The EAC develops guidance to meet HAVA

requirements, creates voting system guidelines,

and serves as a national clearinghouse

of information on administering federal elections,

election-survey results, advice on election

processes in each state, and up-to-date

news on election commissions. Among other

resources, the website offers training videos,

advisories and guidance for election officials.

Election Updates blog

http://electionupdates.caltech.edu/blog

.html

This blog, hosted at CalTech and written by

several election experts, offers frequent

updates on research, analysis and commentary

about election reform, technology, and

administration.

Election Law @ Moritz

http://moritzlaw.osu.edu/electionlaw

Ohio State University’s Moritz law school

publishes this site on the law of election

administration – voter registration and ID,

poll workers and polling place procedures,

recounts and election contests, and related

issues. The site is aimed at lawyers, legal

scholars and journalists. The related Equal

Vote Blog (http://moritzlaw.osu.edu/

blogs/tokaji/), by Prof. Daniel Tokaji, focuses

on voting rights.

Campaign financing and

reform

California Secretary of State Political

Reform Division

http://www.sos.ca.gov/prd

This division oversees both campaign financing

and lobbyists in California. This page links

to electronically filed campaign statements

and campaign disclosure documents, lobbying

disclosures, and the up-to-date Lobbying

Directory.

Federal Election Commission

http://www.fec.gov

This site provides federal campaign finance

reports and data, minutes of commission

meetings, press releases, and general

overviews of campaign finance laws and regulations.

Find campaign finance law

resources, such as disclosure forms, data on

PAC contributions, and more at

http://www.fec.gov/disclosure.shtml.

Election Reform Information Project

http://www.electionline.org

The Election Reform Information Project (Pew

Center on the States' Election Initiatives)

offers nonpartisan news and analysis on election

reform, and a centralized source of data

for policymakers, officials, journalists, scholars,

and concerned citizens.

OpenSecrets.org (Center for

Responsive Politics)

http://www.opensecrets.org

This nonpartisan, nonprofit research group

tracks money in U.S. politics and its effect on

elections and public policy. At this website,

you can view financial information for candidates,

office holders, parties, and PACs as far

back as 1990.

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

13


Law Library News

Sacramento County Public

Law Library News

Coral Henning, Director,

Sacramento County Public Law Library

The Civil Self Help Center has a new home! The

Sacramento County Public Law Library (SCPLL) is

the new home to the Civil Self Help Center which was formerly

located in the Sacramento Superior Court. The Civil

Self Help Center (CSHC) provides self represented litigant’s

FREE legal advice and information on a variety of civil issues

including but not limited to responding to a breach of contract

complaint, name change, discovery requests, and much more.

The center came about through a partnership with

SCPLL, the Sacramento Superior Court and the Voluntary

Legal Services Program (VLSP). SCPLL contracts with VLSP

to staff the CSHC. VLSP staff consists of a staff attorney and

two paralegals. SCPLL staff work with VLSP each morning

to “triage” the incoming customers. We assist in directing

customers to CSHC workshops or in making appointments

for one-on-one assistance.

The Sacramento Superior Court, due to the state’s economic

crisis, could no longer fund this important program

out of their general fund. SCPLL spoke with the court’s

executive office about transitioning the program to SCPLL

and a partnership developed whereby the court provided

the furnishings and initial office equipment for SCPLL to

get the center off the ground. In addition, the Superior

Court also is providing some grant monies to defray some

of the staffing costs. This worked out to be a win-win for

all concerned: the program, with VLSP staff, continues to

provide much needed services to the public, SCPLL

expands services and increases visibility and value in the

community, and the Superior Court continues to support

improved access to justice!

Visit http://www.saclaw.org/pages/civil-self-help-center.aspx

for more information about our new CSHC.

Law Library News

Spotlight on the Collection:

Law & Motion

Pretrial motions can play a critical

role in the outcome of

any case. The Sacramento County

Public Law Library has an excellent

collection of materials to help you

draft persuasive motions and effectively

fight opposing counsel’s

motions. Some of these titles include:

California Law and Motion

Authorities, by Douglas R. Parker,

Keith N. Crouch, and David N. Finley.

(KFC 1012 .P37)

This two-volume loose-leaf contains

over 1000 pages of motion citations,

including current statutes,

rules, and selected recent cases.

14 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

By Mary Pinard, Public Services Law Librarian

Authorities are provided for hundreds

of California civil motion topics.

California Motions in Limine, by

David N. Finley. (KFC 1012 .F56)

This loose-leaf from the Rutter

Group provides practical information

for making and opposing common in

limine motions. For each type of

motion, the author provides suggested

motion text and supporting and opposing

authorities. A CD-ROM accompanies

this loose-leaf, which provides

modifiable electronic versions of the

sample motions found in the text.

California Summary Judgment

and Related Termination Motions,

by Donna Bader. (KFC 1052 .B33)

This Rutter Group loose-leaf

includes citations to support and

oppose the major civil motions such

as summary judgment, dismissal,

demurrer, and motion to strike. Each

chapter also provides sample supporting

and opposing motions. A CD-

ROM accompanies this loose-leaf,

which provides modifiable electronic

versions of the sample motions found

in the text.

Handling Motions to Compel and

Other Discovery Motions: Here's

How and When To Do It, by Jeffrey A.

Tidus and Commissioner Everett


Hewlett, Jr. (KFC 1012 .Z9 T53)

This Action Guide from CEB

includes step-by-step instructions,

along with practice tips and judicial

perspectives, for preparing discovery

motions and requesting sanctions.

This Action Guide is available on the

library’s computers using OnLaw.

Making and Opposing a

Summary Judgment Motion: Here's

How and When To Do It, by Roy G.

Weatherup and Hon. Richard A.

Kramer. (KFC 1052 .W43)

This Action Guide from CEB covers

the procedures both the moving

and opposing parties should follow

before, during, and after a motion for

summary judgment or summary adjudication.

The guide includes step-bystep

instructions, practice tips, and

judicial perspectives on summary

judgment motions. This Action Guide

is available on the library’s computers

using OnLaw.

Younger on California Motions,

by Judge Eric E. Younger and Donald

E. Bradley. (KFC 1012 .C35)

Written from a judge’s point of

view, this book covers general motion

practice, and provides extensive coverage

of particular motions. The

authors provides tips on what does

and doesn't work, what judges are

looking for, and how judges view certain

arguments.

For those of you who prefer

audio/video materials, we also have a

collection of Law and Motion materials

in those formats.

Civil Law and Motion: Research,

Writing and Results, by Richard E.

Habeck, William James Kopeny,

Daniel E. Skinner. (KFC 1012 .A75)

In addition to the research, writing,

and presentation of common pretrial

motions, the panel discusses the

ethical considerations of law and

motion practice, and provides tips for

working with opposing counsel.

Motion Practice: Winning "On

the Papers", by Hon. Anne Bouliane,

Hon. Lee Smalley Edmon, and Michael

D. Stein. (KFC 1012 .A75 M68)

This panel discussion is designed

to help listeners improve the effectiveness

of their motions. The topics covered

include the rules related to pretrial

motions; preparation of persuasive

documents such as declarations,

separate statements of uncontested

facts, and memoranda; objections to

the opposition’s evidence; and successful

requests for sanctions.

The Nuts and Bolts of Law and

Motion, by Hon. Loren McMaster.

http://www.saclaw.org/videoDetails.a

spxvid=20

View this presentation by Judge

Loren E. McMaster, Sacramento

Superior Court, on Law and Motion. He

explains the required time lines for filing

and service of a motion, the ins-andouts

of local practice, how to write an

effective motion, and the tentative ruling

system. This video provides 1 hour of

participatory MCLE credit. There is a

$20 fee to download this video.

Summary Judgment and Other

Dispositive Motions, by A. James

The Sacramento County Public Law Library

has an excellent collection of materials to

help you draft persuasive motions and

effectively fight opposing counsel’s motions.

Main Library

813 Sixth Street, First Floor

Sacramento, CA 95814-2403

Branch Library

3341 Power Inn Road, Room 112

Sacramento, CA 95826

916-874-6011

www.saclaw.org

NEW ACQUISITIONS

MICRA Manual

Horvitz & Levy

KFC317 M53

Social Security Claims and Procedures,

6th Edition

West (2009)

KF3649 .M27

Robertson, John A. Burke, and Lisa A.

Costello. (KFC 1012 .S86)

The panelists provide practical

information and tips on summary

judgment, judgment on the pleadings,

and motions to quash.

Summary Judgment and Other

Motions to Terminate Civil Cases,

by the Rutter Group. (KFC 1012

.A75 S86)

Panelists in this recording discuss

the timing, grounds, and procedural

requirements for making and opposing

motions to terminate. They provide

tips to persuasively present your

motions and oppositions, and describe

how trial and appellate courts analyze

these types of motions.

Keeping Children Safe When Parents

Are Arrested: Local Approaches That Work

California State Library,

California Research Bureau (2007)

KFC11.5 P83

California Tribal-State Gambling Compacts

California State Library,

California Research Bureau (2007)

KFC646.Z9 S56

Subcontractor’s Operations Manual

McGraw-Hill (1999)

KF902 .L48 1999

International Codes: The Complete Collection

International Code Council (2009)

K3538.A15

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

15


Profile

New UCD Dean Wants To

Be Loud And Clear

By Elhahm Mackani

Photograph courtesy of UC Davis

Kevin R. Johnson may have come from humble

beginnings, but humble he will be no longer…at

least about the UC Davis School of Law that is.

Johnson was the first in his family to go to college and

is now the first Latino to serve as dean for a University of

California law school. It was his grandmother who always

Johnson applied to just four law schools and Harvard

was the first to respond. Having never been east of Lake

Tahoe, Johnson moved to Massachusetts to begin his legal

career. It was a time of great growth and excitement for

him. Johnson recalls taking things you find so easily in

California for granted (like tortillas). “There wasn't much

Dean Johnson in front of the construction site of the King Hall Expansion and Renovation Project, wearing a Pabst Blue Ribbon hat in

honor of the $1 million dollar donation from the Kalmanovitz Charitable Foundation. (The late Paul Kalmanovitz was the owner of

Pabst Brewing Company.)

encouraged him to pursue a legal career. The seed she

planted blossomed while Johnson attended UC Berkeley,

where he majored in Economics.

“What really got me thinking about law school was

being at Berkeley and being in an environment where people

were talking about going to business school and law

school, and just seeing the range of possibilities,” Johnson

said in an interview at his UC Davis office.

knowledge of what people of Mexican ancestry were and

how they differed from Puerto Ricans, Dominicans, or anybody

else. There was a relatively small Mexican population

in Boston and an even smaller number of Latino students at

the law school,” said Johnson.

Ironically, Johnson is now leading a law school that has

been consistently recognized for its diverse student population

and faculty. With Latinos making up 40% of

16 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


California's K - 12th grade students, followed by a growing

Asian population, Johnson is committed to ensuring

access to a public legal education for the people of

California. Johnson confessed, “The only reason I had a

modicum of success in my career was public education

access at the get-go.”

As dean, Johnson plans to continue doing what UC

Davis School of Law has been doing well, but to do it better.

Having jumped from 44th to 35th place in the US

News & Review rankings this year, his plan for UC Davis

School of Law may not be a bad one. In the next five to ten

years, Johnson expects to increase the law school's ranking,

continue hiring great professors, and increase the diversity

of an already diverse faculty.

With state budgets dwindling and student fees going up,

Johnson recognizes that the economy will be the greatest

challenge for everyone. Students are carrying a higher debt

load when they graduate and employers are cutting back

across the board. Nonetheless, Johnson and his team have

worked hard to bring a record number of employers to visit

UC Davis School of Law just this past year. The law school

also has in place a loan repayment program and is working

hard to redirect money from fees toward financial aid and

scholarships.

As his first year as dean closes, Johnson has done many

things to put UC Davis School of Law at the center of everyone's

attention. UC Davis recently created a California

International Law Center to bring together its international

human rights scholars and its trade scholars. The Center

has already started to put on lectures and events, which will

prove beneficial in raising the law school's reputation, both

nationally and internationally. Moreover, the California

Law Revision Commission was relocated to the UC Davis

campus. CSPAN also televised a UC Davis law review symposium

and Johnson himself has contributed legal commentary

regarding recent Supreme Court decisions on

National Public Radio. Construction for a new court room

is also underway, thanks to a generous donation from Pabst

Brewing Company.

Johnson seems to understand the balance required of a

law school dean. He is just as much involved with his students

as he is with the community. Johnson makes an effort

to attend student events as often as he can, especially during

his lunch hour. Although he is not teaching a class right

now, Johnson misses being in the classroom and hopes to

take on a course in the coming year. He also serves as

President of the board of directors for the Legal Services of

California and serves on a committee for Senator Boxer,

making judicial recommendations for the eastern district.

Most of Johnson's legal work has been focused on immigration

and immigrant workers. Fittingly enough, his current

office is temporarily located in a quaint cabin-like

structure, built in the 1920s as temporary showers for

immigrant farm workers. Johnson is currently working on

two books dealing with Mexican immigration and immigration

in general, as well as articles pertaining to racial profiling.

Until construction is completed, Johnson is sure to find

inspiration in the history laden walls of his temporary office.

Johnson's background and experiences will serve UC

Davis School of Law well. His dedication and fervor for public

education will bring hope to aspiring legal minds. Johnson

said about UC Davis School of Law: “We have to change the

idea that we are humble or quiet. We're at a time when we get

support, both moral and financial, from all corners. We need

to tell people what we are doing for the state and the nation.

Unfortunately, we have been northern California's best kept

secret and we can't do that anymore. We need to be clear and

loud about what we are doing.”

Elhahm Mackani, a 2007 graduate of Pacific McGeorge

School of Law, is Staff Counsel at the Department of Managed

Health Care.

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

17


Con Law continued from page 5

here about families, with all the wonderful complexities

that the word entails. When you come down to it, that’s

what these stories are about. They aren’t all horror stories-

-though there is, unfortunately, too much of that. We have

stories of detention, of violence, of terrible abuse. But

what I think Underground is mostly about are families and

how they--like us all--struggle to survive in this country.

The only difference is--a key one of course--they are living

here, enduring here, without the ordinary legal protections

that documented people take for granted. And this leads to

human ri

the book), others are locked up in immigration detention.

We have one horrific story in the book about a detainee

with AIDS who was denied her medication. She died

chained to a bed. It’s painful reading. The story is told by

the detainee’s mother, Olga. We have the freedom here to

talk about these things openly without fear. Or, I should

say, I do. Lawyers out there know that the first amendment’s

protection of free speech is a right guaranteed in the

constitution to people--not citizens--so undocumented

people have the right to free speech (as well as minimum

wage and police protection, etcetera, etcetera) and yet actually

exercising these rights is another matter entirely. In

California and around the country, for instance, we did

have a time a few years ago when undocumented immigrants

began marching and making themselves seen and

heard. This didn’t last too long, though. Fear (of raids, of

being locked up, of being deported back to dangerous

home countries) took over and undocumented people

have retreated back to the shadows. I still believe we [as a

country] have a very strong claim to being a bastion of

human rights, but we have much work to do.

Interviewed by Edward Schwarzschild, author of Responsible

Men and The Family Diamond, associate professor of English

at the University at Albany, SUNY, and fellow of the New York

State Writers Institute.

18 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


Presiding Judge Mize is Selected

Judge of the Year

Some people like his accessibility. Others prefer his

commitment to the community. But what most people

seem to admire most about the Honorable James M.

Mize and the job he’s done as the Sacramento County

Superior Court’s Presiding Judge is his esprit de corps.

“I’ve been practicing law

for 40 years and this guy’s

one of the best,” said Robert

H. “Bob” Johnson, a trial

lawyer and founding member

of Johnson Schachter &

Lewis, a professional law

corporation, in Sacramento.

“In a time of tight budgets,

he doesn’t complain about

the cards he’s been dealt. If

there are not enough judges

or court resources, he deals

with it, happily, and doesn’t

let the stress of the job get

to him. He brings a calming

influence to what by definition

is a chaotic situation

and gives everyone the

sense that we’re going to get

through this.”

“He’s really a decent

human being, but still a

very effective presiding

judge,” Johnson said. “He’s

flexible when he needs to be

flexible and he’s firm when

he needs to be firm.”

“Judge Mize’s tenure as

the presiding judge has

been very, very difficult given the economic circumstances

of the times,” said Sacramento County Bar Association

President Mike Mills. “Yet he continues to be a tireless

worker in support of the community as a whole and the

Sacramento County Bar Association in particular, making

himself available to any number of community groups and

the County Bar Association when needed.”

As a result, Mills was pleased to announce that Judge

Mize has been unanimously selected as the 2009

20 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

Judge of the Year

Photos by Sirlin Photography • By Jack Laufenberg

Sacramento County Bar Association’s Judge of the Year.

According to Mills, there are five criteria used for

selecting the SCBA Judge of the Year: 1) a commitment to

the SCBA mission statement of enhancing the system of

justice and the lawyers and community who serve and are

served by it; 2) a commitment

to the fair and

equitable administration

of the courts; 3) a

respect for others in the

legal community; 4)

the proper judicial

temperament and lack

of bias; and 5) demonstrated

service to the

community at large.

“Every judge in

Sacramento County

likely would meet the

first four criteria without

question,” Mills

said. “But I think where

Judge Mize really excels

and where he stands

out is with the last criterion

of demonstrated

service to the community.

He just has that

track record of working

to help the needy and

making himself available

to the community,

especially the County

Bar Association. He has

always been an ardent

supporter of the SCBA and all of its activities.”

When notified of his selection, Judge Mize was both surprised

and honored by the award.

“It actually came as a shock,” Judge Mize said. “I was

right in the middle of a whole bunch of budget issues, trying

to keep the ship afloat, when I received notification

from [SCBA President] Mike Mills. “I have always held the

SCBA in tremendously high regard and I was overwhelmed

to receive such an honor.”


“But when an award like that is given to a presiding

judge, it clearly is a recognition of the efforts of the entire

bench. We have an incredibly hard-working bench here in

Sacramento – caring and passionate about the work. All the

judges have their own internal value systems that makes

them want to do justice even if nobody is looking. They are

the finest group of professionals I have ever worked with

and sometimes the presiding judge simply gets the credit

for all their hard work.”

Judge Mize, who will be stepping down as the Presiding

Judge at the end of the year, admits that the last couple of

years have not been easy what

with all the budget problems.

As the chief judicial officer in

Sacramento County, Judge Mize

has been in thick of the budget

negotiations, not only with

other judicial officers and

courthouse staff, but with the

State Legislature as well.

“The Sacramento Court,

because of its proximity to the

State Capitol, is the epicenter of

a lot of court budget battles,”

Judge Mize said. “I am on the

phone constantly with State

Legislators and the AOC

(Administrative Office of the

Courts) just trying to keep the

ship afloat. They have already

proposed hundreds of millions

of dollars in cuts. While I

Volunteering at Sharing God’s Bounty, a free meal

program, Judge Mize discusses soup kitchen efficiencies

with another volunteer

understand the need to make

sacrifices in difficult economic

times, our citizens need to realize

that we are not just another

state program that can be cut

back or eliminated. We are the

third branch of the government

– one of the three legs of a

three-legged stool. And if you lose one of those legs, the

whole government fails.”

Not all is gloom and doom on the economic front, however.

Judge Mize said Sacramento is still on track to get a

new $550 million courthouse in the next seven to eight

years and efforts are already underway to find a suitable site.

Although Judge Mize could not reveal the locations currently

under consideration due to the sensitive nature of the

negotiations, he thought the court would be ready to

announce its final decision within a year. He said the

money for the courthouse has already been approved and

“My basketball career proves the triumph of hope

over experience” quips Judge Mize

the funding mechanism, revenue bonds, are already hard at

work building up the necessary cash reserves.

Judge Mize said that increasing the number of judicial

officers in Sacramento County is still a top priority of the

court, but admitted that it would probably be another two

to three years – the expected length of the budget crunch –

before any real progress is made on that front. According to

Judge Mize, Sacramento County ranks third in the State

behind Riverside and San Bernardino Counties in terms of

its need for new judicial officers. The Sacramento County

Superior Court currently has about 60 judges, Judge Mize

said, and the National Center

for State Courts estimates it

should have about 90 based on

its population and caseload.

Judge Mize, a former certified

family law specialist, was

appointed to the bench in 2000

by Governor Gray Davis. In

addition to serving as the

Sacramento County Superior

Court Presiding Judge, Judge

Mize has also served as president

of the California Judges’

Association (2004-2005), the

Anthony M. Kennedy Inn of

Court (2006-2009), the Capital

City Trial Lawyer’s Association

(1989), the Sacramento County

Bar Association (1986) and the

Sacramento Young Lawyer’s

Association (1979).

He has taught and lectured

extensively to other legal professionals

and judicial officers

alike and is the recipient of

numerous community-based

awards, including the Center

for Youth Citizenship’s 2008

Education & Community

Outreach Award, the California Judge’s Association’s 2007

Alba Witkin Humanitarian Award, and Women Lawyers of

Sacramento’s 2004 Frances Newell Carr Award.

Judge Mize is a founder of the Voluntary Legal Services

Committee, which was the first SCBA program to provide

pro bono legal services to indigent clients, and Sharing God’s

Bounty, a free meal program at St. Philomene’s Catholic

Church, which has served more than three quarters of a million

meals to the area’s poor and disadvantaged since 1983.

A graduate of the University of California, Berkeley, with

Continued on page 33

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

21


The 2008 election for the 10th Assembly District was

extremely tight, one in which literally every vote - at

the polls, absentee, and provisional ballots - had to be counted

and confirmed before a winner eventually emerged. This

was the closest Legislative race in California in 2008 and the

winner was not known until three weeks after election day,

when the very last ballots were counted.

My Decision To Run For Office. As a practicing business

litigation attorney, I regularly followed public policy

developments in the media and discussed them with my colleagues

around the water cooler. Over time I grew increasingly

frustrated by the partisan bickering and the failure of

the legislature to adopt a budget that actually reflected our

priorities as a state. I decided to do something about it - I

decided to run for State Assembly. Most people told me I

couldn't win. The district includes all of Amador and parts

of Sacramento, San Joaquin and El Dorado counties and historically

has been a Republican stronghold. As a democrat

the odds we're against me.

One of the reasons I decided to run for office was because

I felt the district needed a different kind of advocate - someone

who wasn't a political insider, someone who brought

common sense solutions to the table, and someone who

would speak up for the local issues that mattered most to the

residents. I felt that our state's gridlock was due in large part

to our state representatives' unwillingness to leave their ideological

corners and just do what is best for their district and

the state. With this perspective in mind, I took every opportunity

to talk to voters about my story and why I was running

for office.

Election Day Arrives. With two years of campaigning

at its conclusion, and countless volunteer hours spent on the

phone and walking door to door to reach thousands of

undecided voters, election day finally arrived. The excitement

was high as so many people had invested so much into

the campaign. When the first results started trickling in, we

knew it was necessary to be patient and wait for all the votes

to be counted before drawing any conclusions.

I knew early on in the campaign that this race would be

very close and the race would not be over until every ballot

was counted. When the early votes came in we were down

22 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

Elections

WHY EVERY VOTE COUNTS:

Reflections On My Close Race

By Assembly Member

Alyson Huber

by more than 4,000 votes, but as the night progressed that

margin was cut to about 1,000. The morning after election

day, the Registrar of Voters reported that there were still tens

of thousands of absentee votes and provisional ballots yet to

be counted. And so the election saga continued as lawyers,

staff, and volunteers from both campaigns spent the next few

weeks at the County Registrar’s Offices watching every vote

being counted. The validity of ballots was challenged and

fought for.

The Ballot Count. It took three weeks to count all the

votes, and during this time my opponent was treated as the

presumed winner in the race. He was invited to the orientation

for new legislators. New legislators were interviewing

staff, beginning to draft bills for the new legislative session

and attending briefings on our ballooning budget crisis. My

opponent was assigned a temporary office and they put his

name on the door. But that did not deter me in the least; we

just kept focused on monitoring the ballot counting.

On the last day the counties were scheduled to finish

counting their ballots, November 25th, 2008, I pulled

ahead. When the results were certified, I won the 10th

Assembly District by an extremely close margin- only 474

votes ahead of my opponent, out of 189,106 total votes cast.

The un-winnable seat was won. This election showed

that the people cared more about who you are and what you

stand for than whether you are a Republican or a Democrat.

With the help of so many dedicated supporters we prevailed.

Clearly I could not have won this race without the help of

my friends, campaign staff and volunteers, and especially my

family for their sacrifice during the long campaign. But

more importantly, I could not have won without the thousands

of supporters who took the time to cast their voteevery

last one of them.

Moving Forward. Now, as a first time public servant, I

am honored to have the opportunity to take a fresh look at

how our government functions. My constituents are understandably

frustrated with government inefficiency and a lack

of accountability. I have heard their complaints and concerns

and share their dissatisfaction.

During my first months in office, I have been frustrated

by the way our state does many things. Most citizens recog-


nize the need to take a step back, ask why we are doing

things a certain way and make constructive improvements.

While it is easy to get distracted with short term fixes to the

state's problems, we cannot let this opportunity to produce

long term reforms go wasted or we will only find ourselves

back in this same dilemma years down the road.

The state is facing a very difficult situation and now is

the time to make constructive reforms. We need to take a

close look at the way we are governing, so that we don't

repeat past mistakes. We need to ask the question of

whether it is possible for our budget to truly reflect our priorities

as a state. We simply do not have the flexibility to

deal with a crisis when we govern by formulas, ballot-box

budgeting and court-ordered spending. I strongly believe

that means examining our core governing document, the

State Constitution.

Moving the state beyond its current condition will not

be an easy task, but I know from personal experience that

if we dedicate ourselves and work hard we can get there.

One of the reasons I ran for office was because I understand

the difficulties families and businesses are facing, but I also

know the state can provide opportunities for Californians to

thrive if we properly set our priorities.

I was elected because people wanted to see change and

that's exactly what I am fighting for. I well appreciate that

I would not now be representing the 10th Assembly

District if the voters had not believed in me and taken the

time to go to the polls on election day. The voters should

likewise appreciate that their votes count and that they can

make a difference.

Assemblymember Alyson Huber was elected in November 2008

to represent the 10th District. Before being elected to the

Assembly, Alyson was an attorney practicing business litigation

and intellectual property law. Raised in Lodi, Alyson graduated

from Lodi High School before attending San Joaquin Delta

College in Stockton. Because of her national success on the

debate team she received a scholarship to California State

University, Chico. After state budget cuts threatened to dismantle

Chico's speech and debate team, Alyson transferred to

Cornell University in Ithaca, New York, where she received her

Bachelor of Science with honors. She came back to California

and received her law degree from the University of California's

Hastings College of the Law. Alyson lives in El Dorado Hills

with her husband, Tim and two of their four children. They

have two children in college.

Paul S. Hokokian, Esq.

Mr. Hokokian, former chair of the State Bar’s Regulation, Admission and Discipline

Committee, represents lawyers facing State Bar discipline. He will also consult on ethics.

Mark Twain: “The man who represents himself has a fool for a lawyer.”

Paul will provide you the dedicated, diligent attention to preserve, protect your Bar Card

and maintain your professional reputation. Paul will schedule evening or Saturday

appointments in his Sacramento office to accommodate your professional obligations.

If the bar calls, call Paul.

phokokian@sbcglobal.net

(559) 268-1177 Office

(559) 355-9647 Cell

(888) 648-1177 Toll Free

(559) 268-1177 Fax

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

23


Lawyers’ Role in Voter Protection

Program: Obama For America 2008

By Luis A. C

24 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


Consistent with Nevada law, one lawyer was initially

assigned as an inside observer in a designated area to

strictly observe the conduct at the polling place after executing

the proper form and inspecting and recording tabulation

information from the new electronic voting

machines. Two other lawyers were provided with a table,

a sign, and a brightly colored shirt and located at a specified

distance from the polling location inside the school.

Their role was to answer questions and otherwise monitor

activities at the site, including the length of voter lines and

any unusual activity, such as video-taping, that might

intimidate potential voters or otherwise interfere with the

voting process. For example, we learned that many Latino

voters in Northern Nevada received phone calls in Spanish

incorrectly stating they could vote by phone, presumably

aimed at discouraging voter participation on election day.

Also, we learned of flyers being distributed with incorrect

voter information.

Throughout election day, which began at 5:00 a.m. and

ended at 8:30 p.m., we were able to answer numerous questions

for a variety of voters regardless of their party affiliation.

Many Spanish speaking voters were grateful to be able

to ask very basic questions in Spanish, especially from an

abogado (lawyer) without fear that they would be viewed as

uneducated or unsophisticated. Also, we were able to alleviate

the concerns of many voters born in Mexico who

thought they may not have received proper documentation

before voting because they weren't issued a “tarjeta electoral,”

a security-enhanced photo voter identification card

issued by the Mexican National Elections Commission,

which is needed to vote in Mexico.

As monitoring for police presence at the polling place

was also one of our assignments, our team became alarmed

when we observed a marked police car parked directly in

front of the school at 8:30 a.m. Historically, the presence

of marked police cars at polling locations has had a chilling

effect on voter participation. Looking into the matter,

we found out that even though O'Brien Middle School was

closed to students on election day, some teachers remained

on the job and had scheduled a gang-prevention training

with a member of the gang suppression unit with the Reno

Police Department. We immediately reported the presence

of the police car to the local “Boiler Room,” and after twenty

minutes the officer received a call from the Chief of

Police and Office of the Mayor to move the patrol car

behind the school.

Although the turnout of 61 percent of eligible voters

did not reach the estimated 63 percent turnout in President

Kennedy's victory in 1960, over 130 million voters participated

in the 2008 election, a turnout that exceeded the

122 million in the 2004 election. In the State of Nevada,

Latinos constituted 16 percent of all voters with 78 percent

voting for President Obama (see Big Turnout of Latino

Voters Boosted Obama, Wall Street Journal, page A10,

November 8, 2008).

Who says voting doesn't matter Millions know all too

well that elections matter. Thanks to the thousands of

lawyers who volunteered their time to monitor polls

throughout the country last fall in conjunction with the

Obama for America organization, the voting rights of many

voters were protected in 2008.

Mr. Céspedes is a graduate of the University of California-

Berkeley, Boalt Hall School of Law, and is past-president of the

Sacramento Chapter of La Raza Lawyers Association and is a

co-founder of the Unity Bar Association. He previously served as

senior consultant to the Office of the Assembly Majority Services,

Administrative Assistant to former Congressman Vic Fazio, and

as principal consultant to former State Senator Art Torres. His

private practice includes civil litigation, immigration, and

employment law. He also conducts Title VII/F.E.H.A. compliance

training for public and private employers.

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

25


Elections

Anatomy of a Local Tax Ballot

Measure: The City of Sacramento’s

“Communications User Tax”

By Lawrence J.

Duran

When we hear the word “tax,” we generally think

of the income tax, property tax, or sales tax -

but certainly not the telephone tax. The telephone tax has

been a major source of revenue for local government for

many years, but in recent years it has been declining as new

technology replaces traditional land-line telephone service.

For example, the City of Sacramento’s tax revenue from

land-line telephone service fell from $18 million in 1999 to

$9 million in 2007. Given this trend, the City anticipates

that its land-line tax base will continue to decline as the

growth of Voice over Internet Protocol (VoIP), text messaging,

and other new technologies continue to replace landline

telephone service.

The City was fortunate in that while its land-line telephone

revenues were declining, revenue from cellular telephone

service grew from $2 million in 1998 to $12 million

in 2007. But in 2006 the City's cellular telephone tax was

possibly placed in jeopardy as a result of action by the

Internal Revenue Service (IRS); and when the City amended

its telephone tax ordinance to rectify that situation, the

Howard Jarvis Taxpayers Association (HJTA) brought a lawsuit

brought against the City challenging its new ordinance. In

response, the City placed a new tax measure on the

November, 2008 ballot-Measure O. This article describes

the political and procedural dynamics of placing this new

tax measure on the ballot.

Utility User Taxes. Although property taxes are the

primary tax for local government, the utility user tax (UUT)

is also a major revenue source of revenue for cities and

counties throughout California and the nation. For example,

in Fiscal Year 2007, the UUT collected from all utilities

within the City of Sacramento exceeded $55 million, which

was 13 percent of the City's General Fund revenues.

As originally enacted in 1969, the City’s UUT applied

only to gas, electrical, and land-line telephone services. The

City expanded its UUT to include cable television in 1988

and cellular telephone service in 1993. 1 Measure O now

expands it to apply to virtually all communication services,

including text messaging, VoIP, and video service.

The Genesis of Measure O. Just as most state incometax

laws “piggyback” on federal income-tax laws, cities and

counties have likewise “piggybacked” on federal excise tax

(FET) laws for their telephone tax. In doing so, they have

followed the IRS' interpretation and application of the FET

in applying their telephone tax. But this practice changed

in 2006 when the IRS made a major policy change from its

past interpretation of FET laws as they apply to cellular telephone

service.

Specifically, the IRS changed its longstanding interpretation

of Internal Revenue Code (IRC) Section 4252 relating

to the FET. 2 Although IRC Section 4252(b)(1) expressly

states that telephone service is subject to the FET only if the

telephone charge is based on both “time and distance,” for

the past 25 years the IRS' policy, as articulated in Revenue

Ruling 79-404, had been that the Legislature really meant

“time or distance.” 3 But after losing litigation on this issue

in five federal circuits, 4 in May 2006 the IRS announced

that it would no longer follow Revenue Ruling 79-404. 5

Since most cities’ telephone tax were directly linked to

IRC Section 4252 as interpreted by Revenue Ruling 79-404,

some cities feared that this IRS policy change could, in

effect, eliminate their telephone tax on cellular telephone

service. If this were the case, that could mean a revenue

loss of $12 million annually for Sacramento. Although the

City did not believe this view to be accurate, out of an abundance

of caution the City followed the lead of other cities

and amended its telephone tax ordinance to de-link it from

the FET provisions. This new ordinance did not change the

telephone tax, but simply sought to clarify that the City's

existing telephone tax ordinance remained unchanged.

But whenever California cities change a tax ordinance,

they may run the risk of having a court invalidate the

change if it is not done in compliance with Proposition

218. 6 That is, if the change increases the tax rate or expands

the tax base, Proposition 218 requires the tax increase to be

approved by the voters. So in de-linking its telephone tax

from the FET, the City went to great lengths to make sure it

did not expand its tax base. But those efforts were in vain,

as HJTA still sued the City seeking to invalidate the 2006

telephone tax unless the City obtained voter approval of the

new ordinance.

The Decision to go to the Voters. When HJTA filed its

lawsuit, the City was already contemplating expanding the

telephone tax and submitting it to the voters. Because of

26 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


apidly changing technology, the City had concerns that the

out-dated definitions used in the telephone tax did not treat

all technologies the same and therefore the tax was not

applied uniformly for all taxpayers. For example, if John Q.

Taxpayer subscribed to conventional telephone service he

was subject to the tax, but if he subscribed to VoIP, he was

not. In addition, telephone companies’ use of fixed-fee calling

plans, bundled services, and other business marketing

practices had complicated the administration of the telephone

tax.

To address these issues, the City wanted to update the

existing ordinance to include new and emerging technologies

so that the telephone tax would apply more fairly to all

communications users. Updating the ordinance would also

prevent the City's tax revenues from declining as future

technology replaces telephone communications. This

update entailed replacing the telephone tax with a modern

“Communications User Tax” (the Communications Tax).

Submitting this tax proposal to the voters would not only

address the flaws in the City's telephone tax, but it would

also allow the City to settle the HJTA lawsuit.

Preparing Measure O for the Ballot. From the very

start, City staff saw itself as swimming against the current,

so to speak, to even propose taking a tax measure to

the voters because elected officials generally are reluctant

to place a tax proposal on the ballot. Not only did staff

have to convince nine City Council members that this tax

measure was necessary, but also that it would have to be

placed on the same ballot when the City Council members

are up for re-election. 7 And if that were not challenging

enough, the City Council’s approval would have

to be obtained before the Secretary of State's August

deadline in order to get the measure on the November

ballot. That meant trying to get the matter heard during

City’s time-consuming budget hearings and working

around the Council’s summer recess. Meanwhile, the

City was still working to settle the HJTA lawsuit, and at

the same time preparing to litigate the matter if settlement

was not achieved. But the Council members quickly

saw the need for the proposed changes, and they readily

agreed to take it to the voters.

Because of the pending litigation, the City was uncertain

as to how it should go about shaping its ballot measure.

One thing the City did that proved to be especially

helpful was to hire an election consulting firm to poll

potential voters on different tax options. As a “general tax”

under Proposition 218 the City’s tax measure requires 50

percent + 1 to pass. While the polling data showed that a

majority of the voters would support the tax measure, 8

that support was predominantly “soft” support - that is,

and were not fully committed. The polling also showed

that the amount of tax reduction would not significantly

change the results, but that the phrasing of the ballot question

would make a difference.

The polling suggested that an effective campaign was

needed to educate the voters as to why it was in their best

interest to approve the tax measure. But this was problematic

for the City because legally the City cannot use public

funds to campaign or advocate for or against a ballot measure.

9 While elected officials can speak out on the measure,

City staff can only present objective information, such as

factual information displayed on the City website or presented

at community meetings. 10 Thus, the City could only

hope that outside interest groups who benefit from the tax

would advocate for it (e.g., police and fire labor organizations),

and that those who oppose it would not finance a

strong campaign against it.

During settlement discussions in the HJTA litigation, the

City asked HJTA not to campaign against the tax measure,

but they refused. So the next best thing the City could do

was to shape the ballot in a way that would garner voter

support and diminish voter opposition. In this vein, the

City included a small tax reduction to offset some of the

anticipated increased tax revenues Measure O would likely

bring in. In addition, working with HJTA, the City made

some word changes in the ballot language.

Measure O is Approved by the Voters. On November

4, 2008, Measure O was approved by 64 percent of the voters.

Although HJTA did campaign against the measure, it

helped that the Sacramento Bee came out in support of it.

And while the severe economic decline that occurred before

the election could have been disastrous for this tax measure,

that proved not to be the case. It is quite possible that the

large turnout of young people in the Presidential election

may have helped, as it is usually older voters who oppose

tax measures.

Settlement of the HJTA case eliminated the risk of the

City potentially losing up to $24 million in tax revenues it

collected from cellular telephone users in Fiscal Years 2007

and 2008; and the passage of Measure O will help to prevent

similar lawsuits in the future challenging the new

Communications Tax. Measure O also ensures the City’s

ability to continue collecting approximately $12 million

annually for cellular telephone service. And by including

VoIP and other new technologies in the tax base of the

Communications Tax, Measure O will not only result in a

more fair application of the Communication Tax, but

should also increase the City’s tax revenues in the future.

Given the problem caused by the IRS policy change, the

HJTA lawsuit, and the dramatic decline in property taxes

most of those voters were only leaning toward approval, Continued on page 33

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

27


The Role of the Legislative Analyst’s

Office in the Ballot Measure Process

The Legislative Analyst’s Office Serves the Legislature

as well as the Public.

The Legislative Analyst’s Office (LAO), the nonpartisan

fiscal and policy advisor to the California Legislature, is best

known by the public for its work on solving state budget

problems. However, an important part of the office’s workload

relates to our state's system of direct democracy - initiatives,

referenda, and other types of ballot measures.

The LAO has been providing fiscal and policy advice to the

Legislature for more than 65 years. It is known for its fiscal

and programmatic expertise and nonpartisan analyses of the

state budget. The office serves as the “eyes and ears” for the

Legislature to ensure that the executive branch is implementing

legislative policy in a cost-efficient and effective manner.

Elizabeth Hill, who served as the Legislative Analyst for

22 years, retired last year. Mac Taylor, who has been with

Elections

By Daniel C. Carson

the office since 1978, succeeded Hill as Legislative Analyst in

October 2008. In his new role, Taylor supervises a staff of

about 43 analysts and 13 support staff. The LAO is overseen

by the Joint Legislative Budget Committee, a 16-member

bipartisan committee.

In additional to its budgetary duties, the LAO has two

main types of responsibilities relating to ballot proposals for

statewide elections. First, the LAO, in partnership with the

state Department of Finance (DOF), prepares a written

analysis of initiative measures before they are ever circulated

for signatures to qualify them for the statewide ballot. These

are reflected in the “title and summary” prepared by the

Attorney General that must appear on each petition. Second,

when measures do qualify for the ballot - either because of a

successful petition campaign or because the Legislature

passed a law that puts the measure before voters - the LAO

28 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009


prepares a written analysis which appears in the ballot pamphlet

as well as on the ballot label.

Both types of documents summarize what the measures

do as well as their fiscal effect on state and local governments.

We do not take sides. Our documents are meant to be neutral

and objective, and to provide information in a clear and

concise way that would help potential petition-signers and

voters decide whether to support or oppose them.

Legislative Analyst Taylor views these functions as a

major component of the LAO’s work. Notably, in one recent

year, the LAO completed more than 150 title and summary

letters in concert with DOF. We prepared ballot write-ups for

a dozen measures for the November 2008 election alone.

Generally speaking, ballot work is assigned to the analyst on

our staff with expertise in a given subject area. However,

because ballot measures can cut across assignment areas, our

efforts often require close teamwork. For example, our

health and revenue sections collaborated closely when

reviewing a 2004 ballot measure that proposed to increase

cigarette taxes to expand various health programs.

We have generally received good reviews for our work,

which is clearly relied upon by a significant segment of the

electorate for their ballot decision-making. For example, a poll

of voters in a 2004 election on several health-related ballot

measures revealed that 47 percent of those surveyed found the

Voter Guide (and the sample ballot) the most helpful information

in deciding how to vote. In comparison, only 15 percent

found news coverage to be the most helpful information in

making up their minds, while just 9 percent believed that radio

or TV ads or mailings were the most helpful information.

Several statutory requirements and practices guide our

efforts. With regard to the pre-initiative circulation titles

and summaries, we have 25 working days after the

Attorney General requests the preparation of a fiscal estimate

to complete our work. That obviously is a very limited

time to prepare our analysis of measures, which in one

recent case ran 60 single-spaced pages long and had many

separate provisions. Nevertheless, during that time, we seek

information from state and local agencies and other experts

in the fields as well as talk both to likely proponents and

opponents to better understand the measures. Not all measures

are clearly written and, thus, it can sometimes be very

hard to estimate their fiscal effects. The practice by some

initiative proponents of filing multiple versions of the same

measure at the same time, and of filing one amended version

after another, can also be a challenge.

As part of our ballot pamphlet analysis of measures that

have actually made the ballot, we work closely with the

Office of Legislative Counsel to clarify complicated legal

provisions and to ensure the accuracy of our write-ups. Our

draft analyses are also reviewed by a panel of citizens who

help us to ensure that they are crafted in plain and understandable

language. Ensuring that our analyses are both

technically accurate and consistent with often-complex legal

provisions while at the same time providing descriptions of

measures that are easily read and understood by the general

public can be difficult at times.

The Legislature conducts hearings to explore the pros and

cons of initiative measures a month or two before the public

votes on them. Our office regularly plays a key role at those

sessions by explaining how these measures work and their fiscal

implications. Our analyses, both at the title and summary

stage and at the ballot stage, are posted on our web site,

www.lao.ca.gov. The ballot write-ups can also be found on the

Secretary of State’s web site and, of course, are included in the

Voter Guide mailed to all households of registered voters.

Given the important role that the ballot process plays in

the governance of California, we take seriously our role of

explaining and estimating the fiscal effects of these measures

to the public that ultimately will decide their fate.

Dan Carson was appointed Deputy Legislative Analyst in

September 2008 with responsibility for five LAO sections: health,

social services, criminal justice, resources, and transportation. He

has worked for the office 14 years as a budget and policy analyst

and director. Carson is a former newspaper reporter who covered

state and local government and politics for 15 years, including a

decade as Capitol bureau chief for The San Diego Union.

3620 American River Drive

Suite 260

Sacramento, CA 95864

(916) 974-8600

Arbitrator and Mediator

for the American

Arbitration Association

Arbitrator for the Public

Works Panel, Office of

Administrative Hearings

Member, California

Academy of

Distinguished Neutrals

Northern California Super

Lawyer for Alternative

Dispute Resolution

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

29


the development of comprehensive

regulatory reforms was an essential

part of the Legal Division’s work.

Many of these efforts were attempts

to reconcile conflicting statutes, particularly

in the area of campaigns,

resulting from various legislative

measures that were added piecemeal

to the Political Reform Act. Given

the complexity of the Political

Reform Act as it exists today, the

work of the Legal Division attorneys

reaches a level of sophistication perhaps

appreciated only by the attorneys

who practice regularly before

the FPPC. This includes the work of

FPPC attorneys such as Assistant

General Counsel John W. Wallace,

Senior Commission Counsel Larry

Woodlock, and Senior Commission

Counsel Hyla Wagner.

Since leaving the FPPC, I have

been working for a school district in

Southern California. Now that I have

had an opportunity to work at the

local level and to be subject to FPPC

regulations, I find that it is very helpful

to have specific rules that ordinary

people can refer to in their daily lives.

I encounter many rules and regulations

that apply to conducting of

campaigns, mass mailings, personal

use of campaign funds, lobbying,

conflict of interest, revolving door,

and other laws.

Looking back, I feel fortunate to

have been involved in attempts to

clarify some of the statutes, in educating

elected officials, and in working

with dedicated attorneys who pursued

what they, as experts, felt was

the right course of action - sometimes

even at the risk of facing potential

harm to their careers. I also feel that

the public is well served by continued

efforts to ensure that rules are easily

understood. In my mind, a good rule

is one that can be followed and

implemented without the assistance

of lawyers.

True political reform is generally

accompanied by technical assistance

by a dedicated staff who transforms

difficult rules into simple maxims.

But over the course of time, I found

that the most successful regulatory

efforts were not those aimed at mere

“legislating” ethics, but those accompanied

by efforts to educate the regulated

community. In this regard, technology

has had a huge impact on

political reform.

Modern technology has enhanced

the ability of the public to monitor

elections and politicians. When I

served as legislative liaison for the

FPPC in 1990, proposed legislation

was tracked manually, and just identifying

the bills that could impact elections

was a very time-consuming task.

Today, members of the public can easily

access proposed legislation,

statutes, and most regulatory actions

through the internet. Technology has

also made it easier for the public to

understand rules and has increased

Continued on page 33

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

31


Section & Affiliate News

Presiding Judge Encourages Lawyers To Speak

Out On Importance Of Independent Judiciary

Inthe lawyer novel, The

Appeal, author John

Grisham, in expected Grisham style,

methodically unfolds the details of

how a high-powered CEO seeks to

“buy an election” to seat his own

handpicked candidate on the

Mississippi Supreme Court - all to

insure that a multi-million dollar toxic

tort verdict is reversed on appeal. The

plot holds all the essentials for a good

summer read: intrigue, twists and

turns, and heroes and villains on both

sides of the bench. But underlying

this story, like all Grisham novels, are

enough factual details to suggest that

the notion of a politicized judiciary is

not just the stuff of pulp novels. In

fact, some say, the independence of the

judiciary is under attack.

Judge James Mize, presiding

judge of the Sacramento Superior

Court, brought that message home to

local lawyers at a luncheon presentation,

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Judge Mize with LDS Business

Association President Treaver Hodson

Crisis,” on June 9, 2009, at the Capitol

City Hotel (previously the Clarion/Cal

Expo Hotel), sponsored by the St.

Thomas More Society, Sacramento, (a

Sacramento County Bar Association

affiliate), the J. Reuben Clark Law

Society, Sacramento Chapter, and the

LDS Business Association.

Citing the need to have more public

education about the role of the

courts and the importance of having

independent judges, Judge Mize took

the opportunity to demonstrate a civic

education program designed to help

the public understand the role of judiciary.

The slide and audio presentation,

titled The Importance of an

Impartial Judiciary, which is designed

for elementary school students, offers

basic civics lessons about the role of

judges and the courts and is informative

and entertaining. 1

On a serious note, Judge Mize cited

disturbing trends that show ongoing

efforts by some to politicize the courts.

Noting the recent ruling in Caperton v.

A.T. Massey Coal Co., 556 U.S. ___ (June

8, 2009, slip op. no. 08-22) [financial

interest (extraordinary campaign contributions)

of judge required recusal],

Judge Mize called it “a great decision”

for judicial independence, adding, “I'm

sorry it was only a 5-4 vote.”

Throughout his remarks, Judge

Mize repeatedly stated the need for

By Paul Starkey

impartial judges. “Judges cannot be

influenced by public opinion. They

cannot,” he emphasized. With clear

disapproval, Judge Mize cited the local

example some years ago of a threatened

recall petition against Judge Loren

McMaster for a ruling in a politically

sensitive case. Citing that instance and

other “threats to [an independent] judiciary,”

- such as political elections,

threats of impeachment, proposed laws

calling for civil or penal sanctions

against judges for certain kinds of decisions

- Judge Mize urged the attentive

audience of lawyers to speak out for an

independent judiciary and concluded

by asking for volunteers to present the

program in the community.

Following the presentation, Judge

Mize generously responded to questions

from the audience, often returning

to his theme of the need for independent

judges. In responding to a

question about balancing personal

convictions with rendering decisions,

Judge Mize noted the issue, but

emphasized the “important obligation”

to apply the rule of law.

This year's MCLE event marked the

fourth consecutive year the lawyer

groups have met for an annual presentation

on legal ethics. The St. Thomas

More Society, Sacramento, the J.

Reuben Clark Law Society, Sacramento

Chapter, and the LDS Business

Association congratulate Judge Mize on

being selected Judge of the Year!

Paul M. Starkey, an assistant chief counsel

with the Department of Personnel

Administration, is a board member of the

St. Thomas More Society, Sacramento.

1. The slide show can be accessed at

http://ms.byu.edu/sacramento.


Judge of the Year continued from page 21

a Masters in Social Welfare, Judge Mize obtained his law

degree from the University of San Francisco, where he was

a contributor and Assistant Editor of the Law Review.

Married with no children, Judge Mize enjoys playing

basketball, travelling, playing the guitar (which he taught in

college) and drinking the occasional glass of fine wine.

Although he still competes with the ferocity of a 20-something

on the basketball court, Judge Mize, age 62, acknowledges

that time has taken its toll and “the older I get the better

I was.”

Although his term as presiding judge has been challenging,

Judge Mize would not have wanted it any other way.

“A State Legislator once told me, and I am paraphrasing,

that leading when times are flush is fun,” Judge Mize said.

“But leading when times are hard is important. I have been

privileged to serve as Presiding Judge during this time precisely

because it wasn’t easy and because I’ve had the honor

of working with so many wonderful colleagues.”

Jack Laufenberg, a family law attorney, was the 2006

President of the Sacramento County Bar Association and serves

on the Sacramento Lawyer Policy Committee.

Ballot Measure continued from page 27

over the past year, the passage of Measure O couldn’t have

come at a better time for the City of Sacramento.

Political Reform continued from page 31

awareness about the political process. At the same time,

however, it has also increased the public’s expectations of

the FPPC, including the expectation that the FPPC should

have this information readily available on-line.

The challenge for the future of political reform is being

able to determine what can or cannot be addressed through

more legislation, and accepting that the various laws relating

to the “flow of money” need to be interlinked to work

together to increase transparency regarding the flow of

money. In the next decade, the public will come to expect

and demand full transparency of elections and the political

process. In order to make that expectation a reality, it is

incumbent upon the public to continue to support the

FPPC in its efforts to zealously administer and enforce the

Political Reform Act.

Luisa Menchaca served as legal counsel for the FPPC from 1990

to 2007, primarily in the Legal Division, and served as the FPPC's

General Counsel for six years. The Legal Division provides written

and oral advice to public agencies and officials, prepares regulations,

and represents the FPPC in administrative and civil litigation.

Ms. Menchaca is a graduate of Loyola Marymount

University and University of California, Davis, School of Law. She

currently works as the Director of Classified Human Resources for

the Personnel Commission of the Oxnard School District.

Larry Duran is a Senior Deputy City Attorney with the

Sacramento City Attorney's Office. This article represents the

thoughts and opinions of the author and does not reflect the

views of the City of Sacramento or any City official. Mr. Duran

received his B.A. at the University of Colorado-Boulder, his M.A.

at the University of Wisconsin-Madison, his M.B.A. at

Northwestern University in Evanston, IL, and his J.D. at the

Georgetown University Law Center in Washington, D.C.

1. See SCC Chap. 3.32.

2. 26 USC § 4252.

3. Rev. Rule 79-404, 1979-2 C.B. 382.

4. See, e.g., Am. Bankers Ins. Group v. United States, 408 F.3d 1328

(11th Cir. 2005).

5. Notice 2006-50, 2006-25 I.R.B. 1141.

6. Cal. Const., Art. XIII.C.

7. Ibid.

8. However, a “special tax,” a tax designated for a particular purpose

such as public safety, requires 67 percent voter approval, which is not

easily attained. For example, in the May 2009 special election, the

City of Rancho Cordova placed its telephone tax on the ballot as a

special tax and it failed, only garnering 55 percent of the vote.

9. Gov. Code § 54964.

10. See e.g., Stanson v. Mott (1976) 17 Cal.3d 217; Vargas v. City of

Salinas (2009) __ Cal.4th ___ (April 20, 2009).

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Sacramento Lawyer Magazine

Call (916) 448-1087 x200

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

33


For over 30 years, the Center for

Youth Citizenship (CYC) has

been partnering with Sacramento's

legal community to produce the

Gordon D. Schaber (GDS) High

School Law Program - Mock Trial and

Community Service

Help Bring Citizenship Alive

through Law Education!

responses to spontaneous questions

from the bench.

Individuals serving in the role of

Attorney Coach will be matched with

a school and partner teacher coach

and share their legal expertise with a

of Sacramento; United States

Attorney's Office, Eastern District of

CA; the Offices of the District Attorney

& Public Defender, County of

Sacramento; Probation Department,

County of Sacramento; Sacramento

Franklin High School Team-B, first place winner for Moot

Court 2009, with Justice Arthur Scotland, Justice Vance Raye

and Justice Kathleen Butz at the California Court of Appeal,

Third Appellate District.

Elk Grove High School and Sacramento Country Day School-Team A with

Judge Mendez and Judge Virga at the Federal Courthouse. Elk Grove High

received Top Honors, and first place for Sacramento County, in the 2009 GDS

Mock Trial Competition.

Moot Court Competition, a LawWorks

Partnership. Currently, CYC is seeking

volunteers for the 2009-2010 program,

which kicks-off on October 5,

2009 and culminates with the competition

events on January 25, 27,

and 30, 2010. Volunteers are needed

to serve as attorney coaches at competition

schools and as scoring/presiding

judges.

Mock Trial simulates a trial level

proceeding in which students portray

the roles of pre-trial counsel, prosecuting

and defense attorneys, witnesses,

court clerks, bailiffs, and jurors

before a single presiding judge and

two scoring judges.

Moot Court is an appellate level

proceeding in which participating

youth prepare and argue an appellate

level case before a panel of three

judges that evaluates the students on

the quality and persuasiveness of

their legal reasoning and presentation,

as well as their unscripted

34 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

youth team by volunteering approximately

25 hours between October

and January. (Approximately 2 hours

per week.) Register as Attorney

Coach at www.youthcitizenship.org.

For more information, please contact

CYC at (916) 228-2322 or via email

at gds@youthcitizenship.org.

About LawWorks: LawWorks is a

model law education partnership

designed to connect teachers and legal

professionals, expanding service to

schools and local communities.

Through its service, leadership, moot

court, mock trial, and youth court

components, LawWorks provides

youth with the opportunity to develop

the academic and citizenship skills

needed by our young citizens and

future leaders. LawWorks is conducted

by CYC in partnership with the United

States District Court, Eastern District

of California; California Court of

Appeals, 3rd Appellate District;

Superior Court of California, County

County Sheriff; and Sacramento

County Bar Association.

About CYC: Founded in 1984,

the Center for Youth Citizenship prepares

California's young people to

respect one another, our institutions

and laws; understand the responsibilities

and privileges of citizenship;

appreciate our democracy and develop

the knowledge, skills and character

to be engaged and informed participants

in everyday community

matters. CYC promotes schools and

communities working together to

rekindle a commitment to individual

initiative and integrity, preserve a

mutual interests focus and our common

democratic traditions, and prepare

youth for leadership in a highly

diverse and changing world. For

over 25 years, CYC has been providing

exemplary programs and services

that fulfill our mission of preparing

personally responsible and community-minded

youth.


Community Service

Sacramento Teacher Honored as California

Mock Trial Adult Advocate of the Year

By Dan Carroll

The Center for Youth Citizenship (CYC) is pleased to

announce that mock trial teacher coach David Hill

of Elk Grove High School was honored as Adult Advocate

of the Year at this year’s California State High School Mock

Trial competition, held in Riverside in March. The state

competition is sponsored by the Constitutional Rights

Foundation of California, whose President Jonathan Estrin

presented the award to Hill.

The award is presented yearly to the adult who has

demonstrated exemplary dedication and commitment to

the youth of California through participation in the

Constitutional Rights Foundation’s Mock Trial Program.

Key requirements for the award are demonstration of a

capacity to inspire learning and to motivate, and a history

of emphasizing good sportsmanship and citizenship skills.

CYC produces the Gordon D. Schaber High School Law

Program (GDS) for the five-county region that includes

Sacramento, Yolo, Placer, Nevada, and El Dorado high

schools. Mock Trial is one of the annually featured competitive

events. “Hundreds of attorneys representing all five

counties have volunteered countless hours over many years

as coaches as well as scoring and presiding judges during

the competition,” said Rhonda Sato, CYC’s Program

Director. “We really appreciate their help in teaching high

school students about the rule of law, our justice system and

what it means to be an attorney, while also instilling the values

of good citizenship and sportsmanship.”

“Attorneys are important to the program,” said Rick

Lewkowitz, an attorney coach with the Elk Grove team,

“but at the center of the program are the high school teachers

and students. That’s why we are all just thrilled that

Continued on page 37

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35


Community Service

A Change Of Venue And Some

Overdue Recognition

By Vicki Jacobs, VLSP

Managing Attorney

First order of business:

some overdue recognition: One day,

attorney Jay Dyer walked into the

offices of the Voluntary Legal Services

Program of Northern California,

introduced himself and said, “I want

to do pro bono work.” Now, we don't

often have attorneys walk into our

Alkali Flat offices and offer their services

with such enthusiasm, particularly

when they have been practicing

lawyers for a period of years. We

were disarmed by his energy and

eagerness to give back to the community,

and we quickly took Jay up on

his kind offer. He said he wanted to

take one case after another, so we

knew we struck gold.

For all of his pro bono work for the

indigent since that day, Jay Dyer was

awarded the 2008 June Black Pro

Bono Award at the annual luncheon

meeting of the Sacramento County

Bar Association on December 10,

2008. (This is the overdue part.)

The first case Jay took for us was an

unemployment insurance appeal.

Given the state of our economy, we have

been seeing many such cases at legal aid.

The second case turned out to be a

major project. A group of 10 people all

sought help in dealing with the same

abusive employer. These 10 clients

were employed harvesting and bottling

pears. They worked 6-7 days a week,

11-12 hours a day and were often not

paid for their work. They weren't

given any overtime pay and, when they

were compensated, they were paid by a

personal check with none of the

mandatory deductions. On top of

everything else, the employer was verbally

abusive and profane. This was

36 SACRAMENTO LAWYER SEPTEMBER/OCTOBER 2009

Vicki Jacobs awarded Jay Dyer Jr. with the

Voluntary Legal Services Program's June

Black Pro Bono Award at the 2008 SCBA

Annual Meeting (Photo by Ken Rabiroff)

clearly a case that needed to be brought

before the Labor Commissioner.

To make things a bit more complicated,

the primary language of all of

the 10 clients was Hmong. It would

take the assistance of volunteer interpreters

to interface between a volunteer

attorney and the clients.

Fortunately, we were able to locate two

volunteer interpreters. The question

was who was the right attorney to take

on this case. We immediately thought

of Jay who, fortunately, took up the

challenge.

Jay met with our clients at our

offices for a full day one Saturday,

interviewing them and preparing their

cases for the Labor Commissioner. Jay

has put in many hours on this case

and took it to hearing, the result of

which we are still waiting for as of the

writing of this article. Regardless of

the outcome, Jay made sure that our

indigent clients had a voice to redress

their grievances and he represents the

best of our profession.

In accepting his award, Jay cited

the quote from Winston Churchill

that says: “We make a living by what

we do, but we make a life by what we

give.” He graciously thanked VLSP for

giving him the opportunity to make

his professional life by giving back.

The June Black Pro Bono Award is

named in memory of June Black,

VLSP's first pro bono coordinator.

For 17 years, June did the intake and

referral of cases to our volunteers.

There was no one more passionate

about helping the poor receive justice

than June. Jay Dyer's work honors

June Black's spirit and VLSP is grateful

for his service to our community.

Second order of business:

our change of venue: VLSP

is pleased to announce that one of its

projects, the Civil Self-Help Center

that has been operating at the

Sacramento County Superior

Courthouse, has been relocated to the

Sacramento County Public Law Library

effective July 6, 2009. The project,

which assists self-represented litigants

with civil matters pending in the downtown

courthouse (hence, no family,

probate or traffic matters), is now a

joint project of the Sacramento County

Superior Court, the Sacramento

County Public Law Library, and the

Voluntary Legal Services Program.

We’re grateful to the Board of the

Sacramento County Public Law Library

for bringing this valuable program

under its umbrella. In 2008, the Civil

Self-Help Center helped over 6000 customers

at the courthouse. We look forward

to our association with the Law

Library in this venture. If you would

like to volunteer some time and expertise

to this project, please contact VLSPís

Managing Attorney, Vicki Jacobs, at

vjacobs@vlsp.org.


Teacher Honored continued from page 35

Dave won this award.” Lewkowitz, a Sacramento County

assistant district attorney, has acted as an attorney coach at

Elk Grove for the last six years.

Hill has coached the mock trial team at Elk Grove High

School for over twenty years. “We began taking mock trial

seriously when two of my students said they wanted our

team to be more competitive and asked me to help with

that. Being young and naïve, I said yes. I had no idea it

would turn into something that has gone on so long and

that I would be so proud of.”

“Dave is justifiably proud,” said long-time Elk Grove

attorney coach Jake Rambo, a former Hill student, Elk

Grove mock trial team member, and All-State Attorney at

the state competition in 1995. “But when Dave says he is

proud, he is not talking about all the county championships

or the state championship in 2007 or the second place finish

at state this year. He is talking about all the kids who

have been through the program and gone on to great

schools and great careers, and not only as lawyers.” Hill has

seen alumni of his team go to University of California campuses

at Berkeley, Davis, Los Angeles, Santa Barbara, and

Santa Cruz, as well as Harvard, Stanford, MIT, Brown,

Dartmouth, Duke, and Tulane, to name a few.

The award is the product of weeks of secret preparation

spearheaded by Rambo, Heather Partington, an English

teacher at Elk Grove and another former team member, and

Kittie Laubaucher, Hill’s fellow history teacher at Elk

Grove. They solicited and received letters of recommendation

from coaches of the Elk Grove and other high school

teams as well as former students and CYC, assembling an

impressive nomination packet. “They let me look at many

of the letters as they came in,” reported Christie Hill, Dave’s

wife and fellow Elk Grove High School teacher. “The things

Index of Advertisers

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JAMS . . . . . . . . . . . . . . . . . . . . . . . . .Page 31

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Law Ofc of Anthony T. Caso . . . . . . .Page 35

Mammoth Equities . . . . . . . . . . . . . .Page 7

Mechanics Bank . . . . . . . . . . . . . . . . .Page 38

McDonough Holland & Allen PC . . .Page 25

Northern CA Collection Service . . . . .Page 19

Paul S. Hokokian . . . . . . . . . . . . . . . .Page 23

Porter Scott . . . . . . . . . . . . . . . . . . . .Page 17

Professional Reporting Services . . . . .Page 32

Ramsay “Buzz” Wiesenfeld . . . . . . . . .Page 6

Sacramento Law Foundation . . . . . . .Page 18

Sacramento Law Library . . . . . . . . . .Page 15

Sirlin Photographers . . . . . . . . . . . . .Page 35

Thomsom West . . . . . . . . . . . . . . . . .Page 10

Ueltzen & Company . . . . . . . . . . . . .Page 28

Unity Bar Dinner . . . . . . . . . . . . . . . .Page 39

SCBA Bench-Bar Reception. . . . . . Back Cover

September

10-13

September 23

October 5

October 14

October 21

October 22

October 30

they said about Dave were very touching.”

Annie Amaral, an attorney at Downey Brand and Elk

Grove graduate, began helping coach the team last year,

concentrating on the pretrial competition, which is a moot

court style argument, usually concerning a Constitutional

issue. “I didn't take Mr. Hill for advanced placement history

in high school, or get involved with mock trial. He had

a reputation of being a hard driver in both roles.” After two

years of coaching, Amaral has a different view. “He works

the team hard, and the coaches all try to meet his example.

But every bit of it is a labor of love for Dave.”

The author of this article has been an attorney coach with

the Elk Grove team for the past six years. He agrees with

Amaral's assessment, writing in his letter of recommendation

for the award that Hill dedicates himself to the mock trial team

so his students “will learn about themselves and their capabilities,”

so “they can say that when they had the chance, they did

the very best they could do. He does it because he loves them.”

Sato, who has also known Dave Hill for years, agrees, and

notes, “We believe that could be said of many of the teacher and

attorney coaches who each year make the GDS competition a

success. We greatly appreciate the commitment of all of our volunteer

educators, lawyers and judges and sponsoring firms,

whose contributions ensure the quality of our local program

and competition and also prepare our area's youth to compete

successfully in other venues at the state and national level.”

Any attorney interested in becoming involved in the

2009-2010 GDS competition can learn more at

www.youthcitizenship.org or may contact Rhonda Sato at

(916) 228-2322 or gds@youthcitizenship.org.

Dan Carroll is a partner at Downey Brand LLP where he practices

in the areas of energy and professional responsibility and is

the firm's General Counsel.

C A L E N D A R

State Bar Annual Meeting, San Diego

www.calbar.ca.gov/annualmeeting

Bench / Bar Event. (Back Page)

CYC Law Works Kickoff. (Page 34)

Constitutional Law & Civil Rights Section’s

Distinguished Lecture Dinner with Peter Orner. (Page 4)

California ALL - Inaugural Champions of Diversity

Awards Gala, Congresswomen Doris Matsui, honorary

Chair 5:30-9:30pm, Radisson Hotel

Info: jjermaine@calall.org (916) 930-3225

Unity Dinner. (Page 39)

Grant application deadline for Sacramento Law

Foundation. (Page 18) • Submission deadline for

January/February Sacramento Lawyer Magazine

SEPTEMBER/OCTOBER 2009 SACRAMENTO LAWYER

37


Sacramento county Bar aSSociation maGaZine

1329 Howe ave., #100 • Sacramento, ca 95825

You are invited to participate in the

Sacramento County Bar Association’s

Annual Bench/Bar Reception, honoring

Sacramento County Superior Court Presiding

Judge James Mize as Judge of the Year

and Newly Appointed Judges

Thursday, September 24, 2009 • 5:30 - 7:30pm

Citizen Hotel - Metropolitan Terrace

926 J Street Sacramento, CA 95814

Tickets: $30.00 for members ($40 for non-SCBA members) if purchased by September 17, 2009;

$35 for members ($45 for non-SCBA members) at the door; Law Students: $15.00

Live Jazz Music • Winners of the Sacramento Law Foundation Instant Wine Cellar Auction

will be Announced • To purchase raffle tickets call (916) 798-7488

or contact any SLF Board Member www.saclawfoundation.org

RSVP to: Reception@sacbar.org or call 564-3780 x200

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• Bullivant Houser Bailey PC • Women Lawyers of Sacramento

Silver

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• Kronick, Moskovitz, Tiedemann & Girard • Littler Mendelson •

• Mastagni, Holstedt, Amick, Miller & Johnsen, A.P.C. • McDonough Holland & Allen •

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• The Officers and Directors of the St. Thomas More Society, Sacramento

Event Co-Chairs: June Coleman, Helene Friedman, and John Wagner

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