April 2007 RIL - Kern County Bar Association

KCWLA WINE, WOMEN & SONG FUNDRAISER
Wine, Women & Song is the theme for
the 2007 KCWLA wine tasting
scholarship fundraiser to be held at the
home of Kelly Lazerson and Jay
Rosenlieb in Rio Bravo Country Club at
6 p.m. on Thursday, April 19. The
fundraiser benefits scholarships given
by the Kern County Women Lawyers
Foundation each year to outstanding law
students with ties to Kern County.
The wine tasting will feature wines from
Chumeia Vineyards in Paso Robles and
Gainey Vineyard, Zaca Mesa Winery and
Firestone Vineyard in the Santa Ynez
Valley, among several others.
“Red carpet gourmet appetizer stations”
by Porch Life Deli will feature proscuitto
wrapped melon, bruschetta bites, fruits
and gourmet cheeses, and a Santa
Maria-style station Santa Maria-style
station with tri-tip, chicken, tortillas and
accompaniments,
and
sweets
including bread
pudding with
whiskey sauce,
d o u b l e
chocolate cake
and
English
trifle.
Join us for
Wine, Women &
Song and a taste
of California’s
Central Coast
accompanied by
live music! Tickets are $50 each. Please
call Brenda Enderle 322-6023 for more
information.
Kern County Bar Association
1675 Chester Avenue, Suite 220
Bakersfield, CA 93301
Upcoming Events
April 3 Executive Committee Mtg
April 4 Charitable Foundation
Board Mtg
April 10 Board Meeting
April 16 MCLE - Effective Electronic
Discovery: Best Practices and
Practical Advice
April 19 The Light of Hope for Kern
CASA
April 19 Wine, Women & Song,
KCWLA Fundraiser
April 21 MCLE - Structured
Settlements
VOLUME XXVV
ISSUE VIII
APRIL, 2007
Kern Law Day
Returns for 2007
page 3
Volunteer Atty
Laura Olivier
page 9
Patient Rights
page 13
Res Ipsa Loquitur
Kern County Courthouse, circa 1922
PRSRT
-STD
PRSRT-STD
U.S. Postage
PAID
Bakersfield, CA
Permit # 947
ANSPACH HONORED WITH
2007 BENCH AND BAR AWARD
By Susan Gill
On Thursday, May 3 at the Petroleum
Club, the Honorable Robert J. Anspach
will be honored as the 2007 Recipient of
the Bench and Bar Award. The Bench
and Bar Award is the most prestigious
honor conferred by the Kern County Bar
Association. It is reserved for those who
render outstanding service to the
administration of justice, those who
bring credit to the legal profession, and
those whose contributions are
cognizable. Judge Anspach is a worthy
recipient of this award.
Robert Anspach graduated from the
University of Notre Dame in 1958. He
went on to earn his law degree at Boalt
Hall, at the University of California,
Berkeley. Returning to Bakersfield in
1961, he joined the firm of Mack, Bianco
King, and Eyherabide. That firm evolved
into King, Eyherabide, Cooney, and
Owens, and finally King, Eyherabide,
Anspach, and Friedman. In 1980
Anspach opened his own law office,
sharing space with the late Paul
Griffiths. As a lawyer, Robert Anspach
represented clients in insurance
defense litigation, as well as in business
and real estate transactions. When
asked if he enjoyed practicing law, Judge
Anspach chuckled and said you have to
enjoy the practice of law, because you now in the third year of his second tour,
work so hard at it. He fondly remembers having returned to Juvenile Court at his
request.
the joy of a
quiet law
Judge Anspach
library and
has enjoyed the
the thrill of
past 19 years
discovering
immensely. He
just
the
explained that as
right case
a judge, one is
to support
c o n s t a n t l y
his client’s
challenged and
position.
presented with
new people. “As
In
1988
a judge, you can
R o b e r t
really affect some
Anspach
peoples’ lives in a
w
a
s
great way.” Judge
appointed
Anspach
also
to the Kern
appreciates the
C o u n t y
opportunities to
Superior
accomplish
C o u r t
The Honorable Robert J. Anspach
things for the
Bench. He
and Judge with Terry Foley (l), Susan Gill (m) and community that
Suzan Hopper (r).
he would not be
Wallace
able to as a
were the
first judges to tackle the backlog of civil lawyer or layperson. He explained that
cases in the Fast Track program. They people listen to judges because of their
were able to make a tremendous position, and they are willing to
difference in these cases, reducing the implement ideas coming from a judge.
time it took to bring a case to trial from Because people are willing to listen to
five years to one year. In 1990 Judge him, he has been able to change the
Anspach was sent to Juvenile Court,
See Anspach on page 11
where he spent one to two years. He is
KCBA Board
By Steve Katz
Officers
Steven M. Katz
President
I just finished reading David Mamet’s
latest book, Bambi vs. Godzilla: On the
Nature, Purpose and Practice of the Movie
Business. I highly recommend the book.
David A. Torres
President Elect
I was interested in the book for two
reasons. First, I have been a big fan of
Mamet, who wrote the screenplay for the
movie The Verdict. The movie screened
shortly before I began my first year of
law school and is one of my favorites. I
went to see the film several times during
my first year to glean whatever I could
that might help with my first year studies
(don’t ask). Secondly, since I was born a
few blocks from Hollywood and grew up
in Los Angeles, I have always been
interested in the motion picture
industry. When I grew up I thought I
might someday be in the movie industry. Judges instruct jurors at each recess
In law school I studied entertainment not to form an opinion until all of the
law. I became a prosecutor (don’t ask). evidence is submitted to them for their
deliberations. No such instruction is
In his book, Mamet observes that, “For given to the reader or viewer of the daily
the newspaper, whatever its flag of news. News outlets are not encumbered
convenience, exists to sell gore, and by a duty to instruct and nor should they
outrage. Much like the movies.” Reading be. Nevertheless, it is important that
that passage I thought about the several the public keep in mind (and perhaps the
recent (and pending) “high profile” cases media too) that like jurors they should
in our county and the coverage that they not “rush to judgment” simply based
have been given by our local media.
upon that day’s reporting.
Paul A. Welchans
Vice President
Susan M. Gill
Secretary / Treasurer
Catherine E. Bennett
Past President
Suzan D. Hopper
Executive Director
Board of Directors
Brian P. Azemika
John R. Brownlee
Frank Butkiewicz
Daniel T. Clifford
David A. Dixon
Larry L. Fields
Tony K. Heider
Robert J. Noriega
C.M. “Bud” Starr
James B. Wiens
Staff
Suzan D. Hopper
Executive Director
Randall B. Dickow
IDP Administrator
Wendy M. Ash
Citlali Carrillo
Chrystal Dean
RIL Committee
Susan Gill, chair
Brenda Enderle, chair
Carol R. Bracy
David Dixon
Suzan D. Hopper
Jay Rosenlieb
Jay C. Smith
Jennifer Thurston
2
PRESIDENT’S MESSAGE ALL THE NEWS THAT’S FIT TO PRINT?
I have often thought that newspaper,
radio and television accounts sometimes
do a disservice in covering “high profile”
cases. Often, they report the most
shocking or “sexy” details as they unfold
in the testimony and evidence. The daily
reporting
though,
most
often
sensational, lacks the context of where
that day’s detail fit with the entire body
of evidence in a case.
WEDDELL HONORED BY SECTION
By Randall Dickow
The KCBA Criminal Defense Section
(CDS) has named Willard L. Weddell as
recipient of the Atticus Finch Award for
2006. The award will be presented at a
dinner in Weddell’s honor the evening
of April 25th at the Bell Tower Club.
Invitations have been sent to all
members of the KCBA and legal
community, with RSVPs requested by
April 23.
The Atticus Finch Award is the highest
honor conferred by the CDS to a member
of the defense bar. Named after the
character in Harper Lee’s classic novel
To Kill a Mockingbird, the award is
presented to the attorney who
Mr. Weddell, a graduate of McGeorge
School of Law, was admitted to practice
in January, 1961. Four years later the
Kern County Board of Supervisors
appointed him as the county’s first public
defender, a post he held until his
retirement in 1995. Throughout that time
Mr. Weddell built that office into a model
for other counties, and even states, to
emulate.
For further information contact Randall
Dickow, 334-4709.
Mamet wrote, “The O.J. Simpson showtrial was a corruptive entertainment.
The probity, the careful and decent
aversion of interest in a civil society,
were replaced with the lurid, insatiate
need for retelling what the viewing
audience quickly forgot was a human
tragedy.” And that is the point: all of us
– the participants, the public, and the
news media ought to always remember
that our courts involve human beings
with human problems. The problem
might be the decision in a murder case
or whether a former county official must
pay back money.
These are human
problems and they
should be covered
with the dignity that
not only our system
of justice deserves
but
what
fundamentally all
people deserve.
Mamet also wrote,
“Perhaps those of
us
who
live
surrounded
by
emotion – doctors,
police,
lawyers,
dramatists – are not
much moved by the
emotional.” Judges
and lawyers should
also keep in mind
the dignity that our
legal
system
deserves no matter
how it is reported.
See President’s Message on page 19
The Kern County Bar Association provides leadership in advancing the professional interests
of the membership and serving the legal interests of the community:
Goal I
Promote professional development and improve participation by all members.
Goal II
Foster cooperation and goodwill between the legal profession and the community, and
disseminate information to the public.
Goal III
Build and maintain programs to assure financial stability.
Goal IV
Facilitate the use of technology in the practice of law.
Res Ipsa Loquitur
Advertising
Advertisements and inserts are welcomed
in the Res Ipsa Loquitur. Ads must be camera ready and submitted in an acceptable
digital format (JPG, TIF, PDF) and emailed to
ril@kernbar.org and paid in full by the 10th of
the month prior to publication.
Additional charges will be assessed for any
changes submitted after the 11th of the
month. No changes will be accepted after 5
p.m. on the 14th of the month.
Ad creation services available for $50 per hour
by emailing ril@kernbar.org.
President’s Message from page 1
Up until recently, I thought that open
access to the courts was a good way to
show the citizenry exactly what happens
in the court system. I favored the use
of cameras in the courtroom. Then I saw
some of that recent proceeding in Florida
and how most of the lawyers and the
judge “played to the camera.”
April, 2007
epitomizes the quote from the book,
“Simply because we were licked a
hundred years before we started is no
reason for us not to try to win.”
Full Page (7 5/8” x 10”)
One Issue - $400
Three Issues - $900
Eleven Issues - $1850
Half Page (7 5/8” x 4 5/8”)
One Issue - $250
Three Issues - $525
Eleven Issues - $1450
Quarter Page (3 5/8” x 4 5/8”)
One Issue - $200
Three Issues - $495
Eleven Issues - $1250
Classified Advertisements
One Issue - $60
Three Issues - $150
Eleven Issues - $525
Newsletter Inserts
$200 per issue, advertiser provides copies
$500 per issue, KCBA provides copies
19
ADVOCATUS CAECUS - ON EQUALITY
By C. M. (Bud) Starr II
During the
middle of
the twelfth
century,
King Henry
II of England
sought a way
t
o
consolidate
his power
a
n
d
concentrate
some of the
wealth of his
b r o a d
country. He
developed a system to expand the
jurisdiction of his royal courts. Those
courts traditionally dealt with questions
that affected only the king’s property.
Henry surmised that the entire realm
was his property, and royal courts could
assume jurisdiction over any dispute.
NEWS & NOTES FROM AROUND THE KCBA
estates. Henry needed something to
attract litigants to his royal courts. The
jury had been a tool of investigation.
Henry applied that tool to disputes
before his courts.
In its earliest days, the jury system
consisted of the summoning of those
closest to and most knowledgeable
about the dispute to investigate and
resolve the matter. Because some
summoned jurors were too busy or at
too great a distance to respond to a
summons, litigants were allowed the
right to fill the jury with uninvolved
citizens. Within a few years, those
knowledgeable about the problem were
summoned as witnesses, and all jurors
were
uninvolved
citizens.
Determination of the facts of a dispute,
whether civil or criminal, was entrusted
to twelve men good and true.
democratic process. Since that time,
many commentators have criticized,
derided, and belittled American reliance
on the jury system. No where, however,
has anyone proposed a workable
alternative that can boast either the logic
or history of the jury system. The
California constitution expresses a
uniquely American concept that the
power to govern lies with the people. The
jury system is a reflection of that central
concept. No elected or appointed official
can avoid reliance on the citizenry for
making the most crucial decisions: the
resolution of disputes under the law. I
fervently hope that in our modern efforts
to streamline and expedite the judicial
system, we avoid the dangerous
temptation of abandoning the jury
system.
Six
centuries
later,
political
commentator, Alexis de Tocqueville, in
Most citizens had historically relied on his Democracy in America, wrote that
the courts set up by the barons to cover participation in the jury system was the
disputes within the boundaries of their most treasured element of American
Programs Director) at 395-1000 (Klein p.m. around the Marketplace Grand
MCLE Credit
or
Email
her
at Fountain.
“Effective Electronic Discovery: DeNatale),
Best Practices and Practical Advice” dduarte@kleinlaw.com.
April is National Child Abuse Prevention
Robert Keenan, Attorney at Law and For our next community affairs month, dedicated to the many children
Litigation Management Consultant, will opportunity, KCPA is organizing a who live with abuse and neglect. During
be the featured speaker at the Kern clothing drive to benefit the Alliance the month of April, hundreds of
County Paralegal Association’s general Against Family Violence and Sexual communities across the United States
Donations of in-season will come together at candle-lighting
meeting luncheon on Thursday, April Assault.
16. Mr. Keenan will discuss the clothing (including underwear and bras, ceremonies to honor the promise of
amendments to the Federal Rules of toiletries, personal hygiene products, remembering the plight of America’s
Civil Procedure regarding discovery sheets and towels) for women and abused, abandoned, and neglected
involving
electronically
stored children of all ages may be submitted at children.
information (ESI) and their impacts. the general meeting or to LeAnn
This is a 90 minute seminar (CA MCLE Banducci c/o Young Wooldridge, 1800 When you think to yourself, “What can
Credit 1.5 hours, with .5 hour Ethics). 30th Street, Fourth Floor, Bakersfield, CA one person do?”…in the case of an
93301. Deadline: January General abused and neglected child, you can do
The luncheon will be held at noon at Meeting
more than you’ll ever know.
Nothing
The Petroleum Club, located on the 12th
touches your heart more than helping a
child. And helping a child who’s been
Floor of the Stockdale Tower, 5060 Give the Light of Hope to a Child
abused or neglected will affect you in
California Avenue. There is extra
parking in the parking structure to the CASA of Kern County invites you to join ways you’d never expect. To purchase a
us for our Light of Hope Event presented candle ($5) to recognize and honor an
north of the Tower.
by Tejon Ranch on April 19. The Light of individual who have been a light in a
The cost is $16 to KCPA members, and Hope is a candlelight vigil “Seeking child’s life, such as a parent, teacher,
$20 to attorneys and non-members. Advocates for ALL Children”. The lighting social worker, child advocate or family
Please RSVP to Delfina Duarte (KCPA of candles and ceremony will begin at 7 member - please contact the CASA office
(661) 631-CASA (2272).
LAW DAY RETURNS TO CELEBRATE THE “LIBERTY UNDER LAW”
By Kathleen Kress, Court Project Analyst,
Kern County Superior Court
Trusted Professionals in
Forensic Accounting
Business Valuation
Family Law
Economic Damages
Mark Luttrell, CPA/ABV
Jerry Randall, CPA/ABV, CFP
William Duerksen, CPA/ABV, CFE
Marie Ebersbacher, CPA/ABV, CFE
Mayer Hoffman McCann P.C.,
an Independent CPA Firm
5060 California Avenue, Suite 800
Bakersfield, CA 93309
Phone: (661) 325-7500 Fax: (661) 325-7004
18
April, 2007
understand. Recent Law Day themes
have included discrimination, jury
service, the three branches of
What the heck is “Law Day”? Another government, and judicial independence.
commemoration day dreamed up by This year’s theme is “Liberty Under Law:
Hallmark to sell greeting cards?
Empowering
Youth,
Assuring
Democracy.”
Actually, Law Day is a national day set
aside to celebrate the rule of law. The Locally, Kern County Superior Court has
concept originated with the American Bar coordinated Law Day activities, as part
Association. In 1958, President Dwight of its community outreach and public
D.
Eisenhower
information function.
established Law Day
Over the past five
as a day of national
years, each Law Day
dedication to the
has
grown
principles
of
exponentially, with
government under
strong support from
law.
Three years
the Kern County Bar
later,
Congress
Association,
Kern
established May 1 as
County Law Library
Law Day.
and Kern County
Superintendent of
The ABA continues to
Schools. A single day
drive
Law
Day
of observance has
activities throughout
been expanded to an
the nation.
They
entire week, this year
select a different
April 29 – May 5.
theme
annually,
Different community
based upon popular
issues that most
partners are invited to
participate each year,
Americans
can
Res Ipsa Loquitur
based upon how their organization’s
mission fits with the theme. This year’s
theme, which the local planning group
has shortened to “Youth and the Law”,
is drawing outstanding community
support. After only two planning
meetings, about 25 events are
scheduled. The court has formally
invited Governor Schwarzenegger to
participate, based upon his support of
early intervention programs. His
appearance would be the culminating
event to a week of community forums,
presentations and workshops.
As the project coordinator, one of the
things that I really enjoy about Law Week
is the opportunity to be creative and
make new connections with the
community. Last year’s culminating
event, a local appearance by Clay
Jenkinson as Thomas Jefferson, started
with an innocent e-mail in November
2005. The Kern County Bar Association
Foundation deserves massive credit for
sponsoring his local appearance and the
opportunity for 500 students to see this
engaging living history performance.
Suzan Hopper, Susan Gill and I were in
See Law Week on page 10
3
KCPA POINT OF VIEW - NO APOLOGY NECESSARY
FAMILY LAW SECTION NOTES
By Kathe Kates Davis, Treasurer
The Family Law Section of the Kern
County Bar Association has grown to 37
members. We have monthly luncheons
with MCLE presentations, and a
“blowout” dinner/dance in December.
Judge H.A. (Skip) Staley has been the
presiding Family Law Judge for over a
year, and he has settled into the role
nicely. Judge Staley addressed the
Family Law Section at its monthly
meeting on February 22, 2007.
Judge Staley expressed his appreciation
for Judge Robert S. Tafoya, a
tremendous judicial asset, who has
worked with Judge Staley on numerous
family law projects. Judge Tafoya has
been reassigned to the North Shafter/
Delano courts; however, he will continue
to write the family law policies and
procedures. (These will be available
partially on the internet as well as hardcopied). Kern County’s most senior
jurist, Judge John L. Fielder, has been
assigned to hear family law cases.
Judge Staley also expressed his
appreciation for Marisol Alcantar, who
assumed the
position of
S u per vis in g
Family Law
C l e r k
following
K a r e n
H o u l e ’ s
retirement
last year. He
a
l
s
o
acknowledged
the family law
attorneys,
w
h
o
impressively
and skillfully
handle cases
u n d e r
difficult
circumstances.
The State of
the Court was the topic of Judge Staley’s
address. He explained that in 2006
there was a significant increase in
hearings and trials, although there was
a slight decrease in filings for that
period. He has established court
sessions exclusively for domestic
4
violence matters twice weekly, and the resolution meetings open to court and
parties leave with orders in hand. He clerk staff and attorneys.
lauded the use of the exparte and temporary
restraining
order
information
cover
sheets, the requirement
of filing preliminary
disclosure statements
prior to the filing of atissue memorandums,
and changes in the
ethical requirements for
temporary judges. Judge
Staley said that he is
continuing to identify
ways to handle the
family court caseload.
Other issues affecting family law that
Judge Staley has identified for Judge Staley concluded by advising the
group that up to 15 Kern County Judicial
resolution in 2007 are:
Officers will retire within the next two
(1) Security delays. (The removal of or three years, and experienced family
traffic court to the Buck Owens Blvd. law practitioners should consider
applying for judicial positions. Judge
location should help).
Staley also commended those attorneys
(2) Redeveloping the procedure, funding, who donate their legal services to the
payment and recovery of minor’s low-income community. Many attorneys
volunteered on the spot to donate their
counsel’s fees.
services to one domestic violence case
(3) Two terminals for the for Greater Bakersfield Legal Assistance,
clerk’s office for retrieving Inc.
information re criminal
and restraining orders
which is helpful in
domestic violence cases.
Court and clerk staff and
some attorneys have been
in communication with
Napa County regarding
their child custody and
visitation orientations for
parties. They have also
visited the Tulare County
Court to observe the
conduct of its family law
hearings. Tulare County
handles more cases than
Kern
County,
has
computerized
time
calendaring and case
management systems, and
sets cases in mornings and afternoons.
In addition, Tulare County mediators
make recommendations regarding
custody and visitation. Judge Staley will
continue to conduct monthly FLAG
(Family Law Advisory Group) issue
By Aneta L. Adams, CLA, KCPA President
A paralegal
who
has
fulfilled the
requirements
of Business
a
n
d
Professions
Code §6450
has earned
the title. In
this day of
so-called political correctness, a
paralegal should not have to apologize
for demanding that her title be respected.
The feelings of those persons using the
title without earning the title should not
be the issue. We have a profession that
we’ve worked hard and long to create,
and we’d better protect it!
We finally have a California law defining
and regulating our profession, and
nobody is paying attention! Besides
qualified paralegals, this means, in
particular, attorneys and HR personnel
who hire paralegals. Before hiring a
paralegal, the attorney or HR personnel
Paralegal/Legal Assistant:
A. Must have at least one of the
following:
1. Certificate of completion from an ABAapproved paralegal program.
2. Certificate of completion from a
paralegal program or a degree from a
post-secondary institution that requires
a minimum of 24 semester units in lawrelated courses and accredited by the
Bureau for Private Postsecondary and
Vocational Education.
3. A bachelor’s or advanced degree in
any subject, a minimum of one year of
law-related experience under the
supervision of a qualified attorney, and
a written declaration by that attorney
stating that the person is qualified to
perform paralegal tasks.
4. A high school diploma or GED, a
minimum of three years law-related
experience under the supervision of a
qualified attorney, and a written
declaration by that attorney that the
person is qualified to perform paralegal
tasks. This qualification only applies
for persons who completed the
experience and training prior to
December 31, 2003.
B. Continuing Education Requirements:
From January 1, 2007, through
December 31, 2008 (and for every 2-year
period thereafter), paralegals must
complete 4 hours in legal ethics and 4
hours in general or specialized law. The
paralegal is responsible for keeping a
record of the continuing education
certificates. The paralegal must provide
the certificates to her/his supervising
attorney for confirmation.
Legal Secretary:
A. Qualifications decided by the attorney
and/or law firm.
B. No continuing education required.
LAW WEEK MCLE OFFERINGS
By Carol Bracy
Attorneys and their teens have the opportunity to experience
law week together. The seminars listed below are offering MCLE
credit. Teens will want to ask teachers whether they can also
get credit for attending. The Volunteer Attorney Program/GBLA,
Kern County Law Library, and Family Law Bar present:
Tuesday, May 1, 2007
The Rights of Foster Care Youth*
at Kern County Superintendent of Schools, 6-7 p.m.
Special Education*
at Kern County Superintendent of Schools, 7:15-8:15 p.m..
Custody and Visitation*
Location TBA, 6-7 p.m.
Minor’s Counsel: How it applies to Custody and Visitation*
Location TBA, 7:15-8:15 p.m.
Want to enjoy an
incredible lunch at
the beautiful
Petroleum Club
overlooking
Bakersfield?
Wednesday, May 2, 2007
School Disciplinary Process*
at Kern County Superintendent of Schools, 6-7 p.m.
The Juvenile Justice System*
at Kern County Superintendent of Schools, 7:15-9 p.m.
The ABC’s of Guardianship*
at Board of Supervisor’s Chambers, 6-7 p.m.
Then attend the
KCBA’s next MCLE
event! All bi-monthly
MCLE meetings will
be held at the
Petroleum Club
beginning June 20!
April, 2007
should understand the educational and
prior experience requirements for a
paralegal position, as opposed to a legal
secretary position.
Here are the
differences:
Tuesday, May 8, 2007
An Overview of the Emancipation Process*
at Tejon Room of the Beale Library, 6-8 p.m.
*Greater Bakersfield Legal Assistance Inc. certifies that the State
Bar of California has approved this activity for MCLE credit in
the amount of 1 hour of credit.
Res Ipsa Loquitur
17
US SUPREME COURT STRIKES DOWN CA SENTENCING SCHEME
HAKUNA MATATA = RES JUDICATA
By Randall Dickow, IDP Administrator
By Susan Salvucci
Every once in awhile, the United States
Supreme Court issues an opinion in the
criminal law and procedure area with
earth shattering effects. In earlier days
there were a number of such opinions:
Gideon v. Wainwright (providing counsel
for indigent defendants); Miranda v.
Arizona (mandating advisal of the right
to remain silent); Mapp v. Ohio
(suppression of unlawfully seized
evidence.) In more recent years under
the Rehnquist/Roberts Court, such
opinions have been rare. However, even
in recent years a few opinions stand out.
Crawford v. Washington in 2004 reframed
the
6th
Amendment
right
to
confrontation. Apprendi v. New Jersey
in 2000 started a string of opinions (Ring
v. Arizona, Blakely v. Washington, Ring v.
Arizona, Blakely v. Washingtton and United
States v. Booker where the Court looked
at and struck down various sentencing
schemes.
determinate sentencing scheme earlier
this year in Cunningham v. California. In
a nutshell the Court held that
California’s Determinate Sentencing
Law (DSL) violated a defendant’s right
to a trial by jury under the 6th and 14th
Amendments. The Court found a
sentencing scheme, such as California’s,
which allows a judge to impose a
sentence higher than the statutory
maximum based on facts not found by a
jury to be unconstitutional.
in the Assembly. An “urgency measure,”
the bill will statutorily provide that where
the sentencing statute specifies three
possible terms, a judge can make the
choice of the appropriate term within the
sound discretion of the court. The bill
specifies what a judge may consider in
the exercise of such discretion.
It is expected that this bill will pass out
of the legislature and be signed by the
governor soon. The defense bar took a
neutral position, neither for nor against
While the Court identified the problem, the bill in senate hearings, primarily
it did not provide the solution, leaving because later this year the entire system
the state with several options.
of sentencing laws in California will be
reviewed by the legislature.
Played up in the press as earth
shattering, the reality is effect is not. In the meantime, our local court has
The application will result in defendants been dealing with sentencing under the
recently sentenced to greater than a mid- Cunningham scheme or obtaining waivers
term (with several exceptions) having to when sentences may fall outside of the
be resentenced. The number of such High Court’s mandates. The District
defendants in Kern County is unknown Attorney’s Office has been including
at present.
“aggravating factors” in many of their
filings and the defense bar is demurring
Based on those opinions it should not The State Legislature has been quick to to such inclusion. At press deadline,
have been a surprise when the High react with SB 40 already passed out of none have been litigated to my
Court struck down California’s the State Senate and currently pending knowledge.
All Kern County
Residents
are now Eligible for
Membership.
Anyway, my parents were faced with a
three-day blizzard recently. Wisely, they
stayed inside and refused to venture out.
You learn these things when you are
raised in the upper Midwest where
Winter blizzards are
fairly common. You
learn to be prepared
all the time because
on the prairie, a
blizzard will descend
in moments. And
when that happens,
you are facing a res
judicata situation.
The results will
either be for you or
against you. You
are either going to
survive, or it is your curtain call.
It’s like preparing for trial. You have to
do what you can to prepare before you
enter the courtroom to start picking a
Ever wonder what happens to all the jury, because once you begin, there’s not
birds who don’t fly South for the winter? a lot of time to complete what you should
I know this isn’t an earth-shaking have done previously. All you can do is
question. But there is Hakuna Matata make a few necessary adjustments
for birds, even though humans may never during the storm and hope for a good
find it. Perhaps that’s why the animals outcome. But I digress, as usual.
sang the song in Lion King. (Actually, I
don’t recall that there are any humans What do the winter birds do when faced
in that movie).
with a storm? I have learned via my
parents observations, they “hunker
COMINGS AND GOINGS
Leonard K. Welsh
Leonard K. Welsh,
partner with Klein,
DeNatale,
Goldner,
Cooper, Rosenlieb and
Kimball, LLP, has
successfully completed
the requirements for
national certification in
both business and consumer
bankruptcy law by the American Board
of Certification (ABC).
www.ksfcu.org
833-7900
(800) 221-3311
EQUAL HOUSING
LENDER
16
I strive to
make each
article of this
c o l u m n
somehow
l e g a l l y
relevant but
I’m
afraid
that won’t
work
this
time. I think
I have Spring
Fever. So, you will have to put up with
what might be referred to as a fluff piece.
Personally, I like them. They are not
easier to write, but they are more
interesting, I think. We all have a fairly
good amount of legal publications to read
in any event, so consider this a
refreshing break. Fill up your coffee cup,
kick back, relax, take on a Hakuna
Matata pose and please read on:
April, 2007
Welsh received his J.D. from
Washington & Lee University in 1980.
He leads the KDG bankruptcy
department and concentrates in the
areas of business and farm
reorganizations, and debtor and
creditor rights. Welsh is an active
member of the Central California
Bankruptcy Association and has
earned an AV Rating from MartindaleHubbell Legal Network.
Res Ipsa Loquitur
Dennis Mullins
Dennis Mullins has
been added as partner
with Klein, DeNatale,
Goldner,
Cooper,
Rosenlieb and Kimball,
LLP. Formerly the
general counsel of
Tejon Ranch, Mullins’
practice will concentrate on real estate
transactions and development. He will
also practice in the areas of land use,
environmental and water law.
Mullins graduated from the University
of Michigan Law School in 1978 and
was admitted to practice in California
the same year. He holds a bachelor’s
degree in political science from UC
Davis.
Submit personnel changes for
Comings and Goings by emailing
ril@kernbar.org.
down” inside naturally created snow
caves under bushes, or inside the lower
limbs of Evergreen trees. They come out
to feed on seeds, etc., then find the
entrance to their snow home, safe from
predators who are
busy hibernating, or
snug inside some
persons
house.
Come to think of it,
I don’t recall seeing
any marauding cats
in the Midwest in
Winter. Good thing
for the birds whose
snow homes are, no
doubt,
quite
susceptible
to
attack.
Hey, this makes me realize that when
we see the news of some cat stuck up in
the top of some tree and unable to get
down (requiring mass quantities of
taxpayer funds for the firemen to get
them down), they have to have gone up
there to try to get a bird or two. So cats
have their own res judicata situations.
In the meantime, I’m pleased to see lots
of ducks and geese flying over Bakersfield
waiting for the blizzards to finish so they
can head North. The six new Lilac
bushes I planted last fall are sprouting
leaves already and I am hoping for more
than one flower this year. Yup, we all
have our idea of Hakuna Matata, and
mine has something to do with lilac
bushes actually putting out flowers!
Happy Spring! I promise to try to write
about some serious legal thing for the
May issue….that is if my Spring Fever
has broken. Thanks for reading.
The Res Ipsa Loquitur
magazine accepts
contributions. Articles
for publication should
be submitted by the
10th of the month to
ril@kernbar.org and
be no more than 500
words, include a
photo, and be on relevant topics.
5
GUTSTEIN SWORN IN AS SUPERIOR COURT COMMISSIONER
By Steve Katz
Superior Court Judge Cathy Purcell
praised the selection of Gutstein as a
On Friday, February 23, 2007 the Kern court commissioner. Commissioner
County Superior Court gathered en banc Gutstein will join Judge Purcell and sit
in the Board of Supervisors Chambers in the Ridgecrest court of the East Kern
to swear in the newest Kern County Branch of the Superior Court.
Superior Court Commissioner Michael
Lawrence Gutstein.
“I have been on both sides,” commented
Commissioner Gutstein. “I’ll try my
In a relatively short, but nonetheless hardest to be a fair judge. As a lawyer I
dignified ceremony, Presiding Superior always appreciated a judge who allowed
Court Judge Jerold Turner administered both sides to fully present and argue
the oath to Mr. Gutstein. After the oath, their case. I want to give everybody a
Commissioner Gutstein’s wife, Alma, fair hearing. I want to treat all
presented Commissioner Gutstein with participants with respect.”
his new judicial robe.
For the past six years Commissioner
Kern County Bar Association President Gutstein practiced as a prosecutor in the
Steve Katz presented Commissioner Kern County District Attorney’s Office,
Gutstein with a framed copy of “A Judge’s most recently assigned to the White
Obligations.”
While making the Collar Crime Section where he oversaw
presentation
Katz
described investigations and prosecuted insurance
Commissioner Gutstein as a “mentsh.” fraud cases. Prior to joining the District
“That’s a word that means: ‘an honorable Attorney’s
Office
Commissioner
and decent person,’” Katz explained. “All Gutstein served as a Deputy Public
of us who know Mike – and those of you Defender in the Kern County Public
who don’t even speak Yiddish – know that Defender’s Office for twelve years. As a
Mike is a mentsh.”
prosecutor and as a defense attorney
Commissioner
Gutstein handled
all types of cases
from infractions up
Michael Burger & Associates
to and including
death
penalty
7702 Meany Ave, Ste. 103
cases.
Bakersfield, CA 93308
REAL ESTATE APPRAISAL & CONSULTATION
With more than 43 years combined appraisal
experience, we are able to handle all types of
valuation concerns, including but not limited to:
-Residential
-Subdivision
-Easements
-Apartments
-Agricultural
-Governmental
-Family Planning
-Commercial
-Consultation
-Industrial
-Vacant Land
-Special Purpose -Relocation
-Estates
-Eminent Domain
-Right of Way
-Tax Credit
-Land Development
We are committed to providing high quality, accurate
real estate appraisal and consulting services.
(661) 587-1010
www.bakersfieldappraisers.com
6
school of Law Commissioner Gutstein
studied under the evidence expert,
Justice
Bernard
Jefferson.
Commissioner Gutstein grew up on
Oahu and earned a Bachelor of Arts in
Religion and a Bachelor of Science in
Biology from the University of Hawaii in
1978.
Prior to going into to public service in
Kern County Commissioner Gutstein
began his law career as corporate counsel
for Compex Systems, Inc. in Los Angeles.
Later he practiced in Ventura, California
where he was the managing attorney for
Jacoby and Meyers Ventura office. He
met his wife Alma while living in
Ventura.
When asked how he ended up in Kern
County, Commissioner Gutstein
displayed his noted wit, by explaining,
“My car broke down on the Grapevine and
the next thing you know, I’m living here.”
Commissioner Gutstein originally came
to Kern County to practice medical
malpractice defense with Patterson,
Ritner, Jurich et. al.
Obviously central in Commissioner
Gutstein’s life is his family. He and his
lovely wife have five children and six
grandchildren; most of whom were in
attendance at the swearing in ceremony.
At the ceremony Commissioner Gutstein
remarked that he was proud of his family.
A 1981 graduate of In a touching moment he said that he
the University of wished his departed mother and father
West Los Angeles were able to see his appointment.
Submissions
The Res Ipsa Loquitur editorial committee welcomes submissions
from its members. All submitted articles should be educational in
nature. Feature articles should be no more than 500 words in
length. A photo of the author for columns, or of the subject if
the article is a feature, should accompany submissions. Citations
should be within the article’s text (no footnotes). A byline must
be included. Articles should be submitted electronically to
ril@kernbar.org. Articles not submitted to ril@kernbar.org are not
eligible to be published.
The Res Ipsa Loquitur editorial board has the right to edit or alter
submissions in any manner deemed necessary. The Res Ipsa
Loquitur editoral board reserves the right to refuse to publish any
article or letter. For additional guidelines or clarification, contact
the Kern County Bar Association at 334-4700 or email
ril@kernbar.org.
April, 2007
Res Ipsa Loquitur
15
THE VIEW FROM THE WATERSHED - IT’S ONLY WORDS
interesting me at the time of the permanent record for making fun of the
deadline are not terribly interesting to kid for being a Mormon?)
most normal people even then.)
I also feel vaguely guilty because I know
This deadline week I am interested in a the stupid officials are saying “We had
It
story that will be, I sincerely hope, to do it. The lawyers made us.”
forgotten by the time you read this. In a makes me want to scream, “Lawyers are
school in northern California a child was trying to make you do something sensible,
being teased about her Mormon heritage. not just whatever nit wit idea you come
up with to say you did ‘something’.”
“Do you have ten moms
I am particularly worried when the
at home?” she was
fuss is about something as
asked. “That’s so gay,”
malleable
and
she retorted.
impermanent
as slang. Yes,
The retort got her a
I know that
“It’s only words/…and words are all I talk
with
the
once “gay” only
have…”
principal and a
meant cheerful
record of discipline
or lighthearted or
I complain about the Res Ipsa deadline in her “permanent
happy but now it
fairly often, and I miss it even more record.” The school
m
e
a
n
s
often. The deadline has two distressing had a “no tolerance
“homosexual” and
features. One is that it arrives so soon. policy” for the use of the term
has also been, for
The other is that the Res Ipsa appears “gay” as an epithet ever since two boys
fifteen years or so, a
so long after the deadline. The events were paid to beat up an allegedly
use as a pejorative,
attracting my interest at the time of the homosexual child at the school last year. term kids
with the meaning that something that
deadline will be forgotten by the time of
publication. (This usually isn’t too much It’s the sort of story that conflicts me. I is “gay” is weird or bad. How can we
of a problem, actually. The things loathe all “no tolerance” policies—we’re punish the kid who said the idea of ten
humans here, facts moms at home was “gay” unless we
change cases, we know for sure whether she meant
HAVE to apply rules “homosexual” or “weird”? (Or maybe
Kenneth N. Vaughan,
in ways meant to “happy”? How happy it would be to have
serve
their ten moms at home…)
CPA/ABV
purposes, Cessat
Partner
ratio lex, cessat lex Finally, and I am only partly kidding
and so on—but I am when I say this, in five years (or less!)
kenv@dpvb.com
sympathetic
to the school rule may become even more
attempts to reduce ridiculous when the term “gay” morphs
harassment
of into a positive term (if it isn’t already)!
Daniells
people, especially for “Look at those wonderful shoes! They’re
Phillips
their group identity. so gay!” “That movie’s gay. Let’s see it
(Which
reminds again!” I’m not sure it will shift its
Vaughan
me—I wonder if the meaning, of, course, but the odds are
other kids have a good.
& Bock
mark
in
their
By Jay C. Smith
CPAs & Advisors
300 New Stine Road
Bakersfield, CA 93309
Tel: 661.834.7411
Fax: 661.834.4839
www.dpvb.com
Member of the McGladrey Network
14
SJB Ad
Musick, from page 13
treatment,
his achieve compliance with statutes
advocacy was fierce designed to balance the rights of the
patients with their need for treatment.
and righteous.
Day Altair explained
that Steve had a very
strong belief in the
rule of law. He felt
there was wisdom in
the
courts’
decisions, and that
it would be ideal if
the system could
Steve Musick left behind his lovely wife,
Mica, and five children, Brandon, Justin,
Destiny, Meagan, and Caleb. He will be
tremendously missed by them, the
entire mental health community, and by
those in our community whose struggles
with mental illness impact their ability
to live fully and with dignity.
April, 2007
Res Ipsa Loquitur
7
STATE OF THE PROBATE COURT PRESENTED TO SECTION
The Probate and Estate Planning Section
of the Kern County Bar Association met
on February 14 to hear the State of the
Probate Court address by Commissioner
Louie L. Vega. Section President Nancy
Oehler noted that Commissioner Vega’s
address always ensures a well-attended
meeting.
Commissioner Vega explained the
changes which have been made by the
new Probate Examiner, John Dunn, and
the Probate attorney, Alisa Knight, and
their staff:
• Whenever confidential information is
filed in a probate case, it will be kept in
a red file folder, to ensure it is not
disclosed to members of the public who
request to see the file.
• Ex parte hearings will require five days’ staff, as three of the clerks are pregnant
and due to deliver before
notice.
July.
• The Family Court
Commissioner
Vega
Investigator will be
closed
with
an
adding one staff person
explanation of the
to address time and
difference
between
background issues.
neurotic and psychotic.
A psychotic person adds
• In addition to the
2 + 2 and gets 5. A
recorded message (at
neurotic person, on the
868-4881) advising
other hand, knows that
which hearings are
2 + 2 equals 4, but still
ready for hearing and
worries
about
it.
which have problems
Commissioner Vega said
and are marked not
ready for hearing, the Probate that with a little less psychosis, and a
Examiner’s notes regarding matters little more neurosis, the probate
scheduled for hearing will be posted on calendar will run smoothly.
the
court’s
website.
http://
www.kern.courts.ca.gov/probate.asp
This will give parties or their attorneys
a head start on correcting problems, and
it will eliminate phone calls to the
Probate Examiner’s Office.
• There will be a three-tiered calendar
on Mondays and Tuesdays. The first
group of cases called (the 9:00 calendar)
will be conservatorships. The second
group of cases called (the 9:01 calendar)
will be guardianships. The third group Commissioner Vega explained that the
of cases (the 9:05 calendar) will be ex Probate Examiner will soon have a
parte matters.
significant challenge with respect to her
JUST RESOLUTIONS, LLC
Alternative Dispute Neutral Services
“OUR MISSION IS A SUCCESSFUL RESOLUTION OF YOUR CASE”
Specializing in Resolving Disputes:
Labor & Employment
Real Estate / Construction
Professional Negligence
Personal Injury
Insurance Litigation
Business Litigation
Serving Central California
Probate & Trust Litigation Bakersfield, Fresno, Monterey,
San Luis Obispo, Santa Barbara &
Elder Abuse Litigation
Ventura
Phone: (805) 543-4648
8
Craig R. McCollum
960 Toro Street
San Luis Obispo, CA 93401
Fax: (805) 542-0225
E-mail: justresolutions@aol.com
April, 2007
MUSICK - ADVOCATING PATIENTS WITH DIGNITY AND RESPECT
By Susan Gill
In 1970 the California Legislature
enacted the Lanterman Petris Short
(LPS) Act, comprehensive legislation
establishing the rules that govern
when and how persons in California
may be compelled to receive
involuntary mental health treatment
in locked psychiatric facilities. A few
years after its passage, the Act was
expanded to include an enumeration
of the rights guaranteed to patients
who are receiving involuntary mental
health treatment under the Act, such
as the right to wear one’s own
clothes, to see visitors every day, to
receive mail, etc. (Welfare and
Institutions Code section 5325.) In
order to ensure that these rights were
not violated, each county mental
health director was required to appoint
or contract for the services of one or more
patients’ rights advocates. (Welfare and
Institution Code § 5520.)
Today, California has an extensive web
of advocacy support for persons with
mental health disabilities. Typically,
California’s patients’ rights advocates
are not lawyers; they are usually lay
people trained in the laws and
regulations which govern mental health
treatment in our state. Patients’ rights
advocates are charged with many
responsibilities, all of them weighty —
they investigate complaints regarding
mental health services and facilities
providing such services; monitor mental
health facilities and programs to ensure
compliance with statutory and regulatory
provisions; provide training to mental
health providers; make sure that
patients know of their rights under the
law; and exchange information and
cooperate with the California Patients’
Rights Office.
In Kern County, the Patients’ Rights
Advocates work for Kern County Mental
Health. For many years one man, Day
Altair, performed the duties of the
advocate alone. However, in 1994 a
second advocate was added to the staff,
to help ensure that the rights of the
mentally ill in Kern County were being
protected and respected. This second
advocate, Steve Musick, was born to the
role of a patients’ rights advocate, and
he earned the respect of all with whom
he worked, patients and providers of
mental health services alike. On
Res Ipsa Loquitur
the Administrative Hearing Officers
who preside over these hearings.
Perhaps because he was not a lawyer,
or perhaps because he was so human,
Steve narrowed in on the humanity
of those involved in the cases. While
we lawyers might cite Conservatorship
of Smith (1986) 187 Cal.App.3d 903 and
discuss the facts only to support the
holding that bizarre and repeated
disruptive behavior alone are
insufficient
to
justify
LPS
conservatorship, Steve thought and
spoke of Elsie Smith as a person, not
as a bundle of interesting legal facts.
When a patient in Unit 3-B bore a
resemblance to Elsie Smith, Steve not
only cited the case, but talked about
Elsie.
In his role as a Patients’ Rights
Sunday, March 4, 2007 Kern County lost Advocate, Steve Musick came to know
this gentle man, in a motorcycle accident many of the most severely mentally ill
persons in our county. Some of these
on Glennville Highway.
people are charming, and some can be
Steve Musick began working with quite challenging. Yet, Steve viewed
single
person
without
mentally ill persons when he was a every
young man in the Army. When he was condescension and as someone entitled
discharged from the Army, Steve earned to his respect and honest compassion.
his AA degree and obtained his license Steve passed that perspective along, too;
as a Psych. Tech. He worked in just in training most of the persons
about every facet of the Kern County authorized to send people to the county
Mental Health System of Care, providing designated psychiatric facility for
outpatient services to both children and evaluation and treatment, Steve and his
adults, working in the Emergency Room co-trainer, Mike Frederick emphasized
at Kern Medical Center, working in the the importance of treating persons with
County’s designated facility for mentally illness with dignity and respect.
involuntary mental health treatment,
Unit 3-B; and the Crisis Stabilization Steve understood his role in the mental
Unit. While Steve was respected, health system – to ensure that the legal
appreciated, and valued in each of these rights of the patients were protected and
positions, he truly found his niche when respected, and that the patient’s position
he joined the Patients’ Rights Advocates was given a voice. He also understood
office. Day Altair explained that the that sometimes if he won a hearing, a
breadth of Steven’s experience in the person who desperately needed mental
mental health system was an invaluable health treatment would leave the
asset to both of them as advocates. In hospital, sometimes at his or her own
addition to his familiarity with the peril. In those cases, Steve was careful
various programs offered by the County, to make sure his client was detained on
Steve had a broad understanding of the the right grounds – and only those
medication and treatment used for grounds. More importantly, Steve’s
passion,
empathy
and
mental illness.
conscientiousness in these difficult
Every Tuesday and Friday afternoon Day cases were effectively marshaled to
and Steve would represent patients in make sure that case planning for
hearings to determine if there is probable treatment and eventual discharge was
cause to support the basis of their the best that could, and should, be
certification for involuntary mental offered. However, when Steve believed
health treatment. Steve took great there was not a sufficient basis to detain
pleasure in learning the facts and rulings a patient for involuntary mental health
of all of the cases construing the LPS
Act, and he often cited such cases to
See Musick on page 14
13
SPOTLIGHT ON VOLUNTEER ATTORNEY LAURA OLIVIER
By Carol R. Bracy, Volunteer Attorney
Program Coordinator
work with and for.” And Laura is
enthusiastic about working with her
firm.
Laura is an Orange County native who
still has a close family connection to the
area. She and
Almost every Thursday night for months
Conrad go to visit
in a row, Laura Olivier could be found at
“I love being a
grandparents,
a desk at GBLA dispensing legal advice lawyer,” Laura
aunts and uncles
to tenants with a dose of down home exclaimed in a
at least twice a
common sense. Laura’s voice would ring recent interview.
month and enjoy
down the hallway with sounds of “I love having a
playing at the
indignation or sternness, depending on skill which helps
beach. Even in
the caller’s attitude or the situation. people… I love
Bakersfield,
“You talked to your landlord how many the way law
Laura keeps an
times asking him to make repairs?...Do school teaches
“over
the
you have e-mail? Give me a few minutes you to think… I
Grapevine”
and I’ll shoot you off a letter that you love
the
connection, as
can send.”
community and I
she
has
Laura Olivier
developed close
In her day job, Laura
love where I work.” bonds with Southern California
works as an attorney
While she derives transplants in a small group that calls
with Klein, DeNatale.
obvious joy from her itself “Bak Pak.”
They have family
Goldner,
et.
al.
work, Laura’s primary dinners together, play sports, go to parks
Specifically, she is the
focus is in raising her and meet in book groups. All of the
Arvin City Attorney, a
2-1/2 year old son families have children Conrad’s age and
job which entitles her
Conrad, born of a the parents include the children in all
to carry a badge (much
previous marriage. She of their activities.
to her son’s delight)
credits Jay Rosenlieb,
and at which there is
managing partner at Between Laura’s work, family life, and
“never a dull moment.”
KDG, with working dedication to friends and volunteer
Conrad
Laura enjoys working
out a flexible schedule activities (she also helps with Habitat
in municipal law, especially with the so that she can parent Conrad and work for Humanity), there are times when she
support that she has from her firm. on a part-time basis, primarily from her has a lot to juggle. As one attorney friend
“Seventy percent of any job is who you home.
commented, “Laura is an example of
someone who clearly loves her work and
still keeps her family first. At
the same time, she is generous
with her time to those who need
her.” The Volunteer Attorney
Program is grateful that Laura
shares her time with the lowincome population of Kern
County!
The Kern County Bar
Association and Greater
Bakersfield Legal Assistance
would like to thank the
following attorneys for
providing pro bono legal
assistance to low-income
residents of Kern County
through the Volunteer
Attorney Program during the
month of February 2007: Amy
Johnson Barks, Kassandra
Clingan, Terry Dennis,
Diane Dodds, Kathryn Fox,
George Manolakas, Terry
McMahon, Lori Pesante, Tim
Swanson, Paul Swanson, and
Jeff Travis.
12
April, 2007
Res Ipsa Loquitur
9
ADR - THEY’RE RAISING MEDIATORS UNDER OUR NOSES!
By Susan Salvucci
If you have
kids in high
school, you
may
have
known about
t
h
e
mediation
program in
our local high
schools.
I
read about it
in
The
Californian
late last year during “the holiday
season.” I was delighted to see that our
school system has been using peer
mediation since 1996 at West High, and
programs have been at Ridgeview High
and Arvin High for about five years.
mediation; Second – get the parties to
the table; Third – ensure confidentiality
before, during and after the mediation
session; Fourth – explain the rules of
mediation so that the parties don’t
escalate their differences during
mediation but begin on a level field of
mutual
respect,
courtesy
and
consideration; Fifth – agree to be
cooperative and abide by the terms of
resolution reached during the mediation;
Finally – assist in communication of
interests and positions, and help find a
solution that both sides can accept, and
uphold as their solution to the problem.
The system works in our schools among
our teens. Counselors have found that
students involved in conflict are more
likely to open up with other students
than with adults. In their experience,
students relate their side of the story
to an adult from the perspective of being
“the victim” when that may not be the
case. The same story related to a fellow
student usually reflects the truth of a
situation rather than a one-sided
version.
Stockdale High has a mock mediation
program where a group of students can
be trained to help fellow classmates work
out their problems peacefully before they
escalate to physical or verbal means.
The counselor of one school’s program
saw the movement toward mediation
programs in the schools after the tragedy The result of
of Columbine.
mediation in
our schools?
The teenagers follow the model format: Reduced fights
First – a referral of the parties to on
campus,
and increase in healthy skills in
students who are referred to the program
as well as in those who are trained and
act as mediators. It has helped students
grow from quick-tempered reactions to
cool, calm, collected kids who know there
is a better way than violence to resolve
conflict.
One trained high school
student even mediated at home —
between her younger sister and the
sister’s boyfriend! A great example of
what mediation skills can do for anyone,
in any area of life.
What we, as attorneys and mediators,
can then anticipate from such
information, is that our future
generations will not only be informed and
open to the concept of a mediation
program in our courts and society, but
that such programs will be expected.
Thus, the efforts of our courts, judges,
attorneys, mediators and community
agencies to develop mediation programs
within the parameters of our judicial and
court system will be welcomed and
utilized by upcoming generations. It’s
good to know. Thanks for reading.
Anspach from page 1
(CASA) in Kern County will undoubtedly
be viewed as Judge Anspach’s greatest
contribution to our community. Yet, this
humble
man
maintains that he
does not deserve
the credit for this,
as it was all the
idea of local lawyer
and child advocate,
Therese
(Terry)
Foley. One day
back in 1992, Terry
went to Judge
Anspach and said,
“I’ve got something
in common with you. I want to come
talk to you about it.” When she
mentioned that her father had been an
assistant basketball coach at Notre
Dame, the judge settled in for a nice long
chat. After awhile, Terry changed the
subject to something dear to her heart,
the idea of starting a CASA program in
Kern County. Judge Anspach was
intrigued, and he set up a steering
committee of a group of child advocates
These
important
achievements in the community. 14 years later, Judge
notwithstanding, the establishment of Anspach appointed the 1,000th CASA
Court Appointed Special Advocates volunteer in Kern County. CASA of Kern
manner in which child abuse victims are
interviewed (they are interviewed by one
person knowledgeable in child
development and interviewing, instead
of being forced to tell the same facts over
and over to different investigators from
different agencies), the manner in which
child dependency cases are presented
(through the social workers’ investigative
report), he has brought together the
stakeholders in the juvenile justice
system to work collaboratively for the
benefit of the children, he was the first
judge in the first Teen Court in Kern
County, and he participated in the
Mentors program, playing basketball
with Hispanic youth at East Bakersfield
every Monday night for a number of
years. Judge Anspach likes to tell the
story of being with a group of boys on a
trip to the beach in Southern California.
When they passed Pyramid Lake, the
boys cried enthusiastically, “Look, it’s
the ocean!” Of course, they were even
more amazed when they arrived at the
real Pacific Ocean.
TURNER TELLS STATE OF THE COURTS
By Jennifer Thurston
Presiding Judge, Jerold Turner, made
his State of the Courts presentation to
the membership and, unlike in years
past, he had good news and big plans
to report.
Law Week from page 3
constant contact to
make arrangements,
often finding our way
in the dark, as we had
little experience with
this kind of event. At
the end, all who
attended
the
performance knew that
this was something
special for the local Terry McNally, Court Executive
Officer, KC Superior Court
legal community.
By June, Judge Turner expects to
receive two new judicial positions with
more appointments possible in 2008
and 2009. The two new judges will
assist in filling the void created by four
judicial officers retiring at the end of
this year and with additional
retirements that may occur in 2008.
The turnover in judicial positions will
present challenges for the Court but
Judge Turner is optimistic due to the
quality of the judiciary in Kern County
and its notable efficiency. Currently,
the court has no backlog of criminal
cases and no real back log of civil
cases.
Please consider sponsoring or participating in a Law Week
2007 event. Full details will be listed soon on the court
website: www.kern.courts.ca.gov/law-week2007. The
Superintendent of Schools is producing booklets, similar
to last year, which will be available for distribution after
April 15. Feel free to contact me at (661) 868-2602 or
kathleen.kress@kern.courts.ca.gov for more information.
With the new judicial positions, the
court facilities will change to provide
additional courtrooms. At the 1415
Truxtun Avenue courthouse, there will
10
April, 2007
Res Ipsa Loquitur
be two new courtrooms constructed by
the end of 2007.
By the end of 2007, Judge Turner
intends to move traffic court to an offsite location that will house two
courtrooms. This move will allow
probate court and the Probate Examiner
to move to the current Traffic
courtroom and the area adjacent. By
moving traffic court off-site, foot traffic
will be reduced at the 1215 Truxtun
Avenue courthouse by one-third. Judge
Turner is considering staggering the
criminal calendar to reduce the waiting
times further.
Finally, Judge Turner reported that the
Kern courts have joined a different
administrative district within the AOC.
Rather than being associated with the
North Central District (with 31 other
counties), now Kern is a member of the
Southern Regional District (with only
10 other counties). Judge Turner
reported that this will allow Kern better
opportunities to obtain resources as
evidenced by the current construction
of the new courtrooms.
County is viewed as one of the best
programs in the entire nation.
When told of Judge
Anspach’s refusal
to take credit for
the creation of
CASA
of
Kern
County, Terry Foley
responded: “While
one must be very
careful never to
disagree with a
judge (except when
there’s absolutely
no chance that the
judge will ever discover your perfidy), I
feel compelled to clarify the record here.
Judge Anspach did much more than
listen kindly to the prattle of a zealot.
Like so many good leaders, Judge
Anspach recognized and appreciated the
merit of a great idea; he invested
significant time, effort, and independent
thought exploring the potential of that
idea; he initiated the process of
development and maintained its forward
momentum with enthusiastic support,
gracious oversight, good humor,
persistence, and free lunches; he did
some of the very critical “grunt work” vital
to putting together a successful
operation; and he made it clear to other
participants in the juvenile court process
that CASA was here to stay because it
had value and merit. During our
formation stage, Judge Anspach was our
leader, our cheering section, our glue.
He was the ace in our back pocket and
the key to so many doors in our juvenile
justice system and in our wider
community. He remains so to this day.
Judge Anspach is our hero.”
Judge Anspach emphatically maintains
that nothing is more important than
one’s family. When young Bob Anspach
was in junior high school in Bakersfield,
a little girl named Rosemary caught his
eye. He bided his time until high school,
when Rosemary was old enough to date.
They married after his graduation from
Notre Dame, and Bob and Rosemary
Anspach now have four children and 11
grandchildren. Next year they will
celebrate their 50th wedding anniversary.
Please join us on May 3, as we confer
the most prestigious award of the Kern
County Bar Association upon this
gracious, humble, and most deserving
gentleman, Judge Robert Anspach.
11