Statute of Limitations Must Govern State Bar Actions
By Michele Hanisee
Last week’s decision by the California State Bar to file disciplinary charges against former Los Angeles City Attorney Carmen Trutanich based on conduct that occurred 31 years ago, should cause unease to every attorney in the state. This action of the State Bar, which acts as the administrative arm of the California Supreme Court, cannot be squared with that court’s long-held beliefs on timely filing of actions in both criminal and civil cases.
An integral part of the law is the concept of a statute of limitations. In Wood v. Elling Corp (1977) the California Supreme Court reiterated the broad policy behind statutes of limitations: “Statutes of limitation … are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them.” In a subsequent opinion, Addison v. State of California (1978) the court reiterated the policy reasons for statutes of limitation, writing that they “serve a distinct public purpose, preventing the assertion of demands which, through the unexcused lapse of time, have been rendered difficult or impossible to defend.”
California State Bar Rule 5.21 (A) states that a disciplinary proceeding based solely upon a complainant’s allegation of misconduct must begin within five years of the alleged violation. However, Rule 5.21(G) states the five-year rule does not apply if the source was “independent” and not based on a complaint. In other words, if a damaged party complains, there is a statute of limitations. If the State Bar chooses to act on its own, in the absence of a complaint from an aggrieved party, they can go as far back in time as they please.
In the Trutanich case, the “independent source” is a Federal District Court habeas ruling issued in 2016, thirty years after the trial in which the alleged misconduct occurred. The bar alleges that Mr. Trutanich knew or was “grossly negligent in not knowing” that two witnesses had testified falsely, and that Mr. Trutanich withheld Brady material from the defense. That ruling occurred 16 years after the California Supreme Court denied Barry Williams’ habeas petition which contained similar allegations of prosecutorial misconduct.
The bar complaint vividly illustrates the ills the California Supreme Court warned of in its decisions on statutes of limitation. In the Trutanich case, the two witnesses the court ruled had testified falsely were deceased by the time of the habeas hearing. The handful of witnesses still alive, including Mr. Trutanich, all testified they had little memory of the events in the case which happened long ago. With minimal testimony provided by actual witnesses to the events at issue, the federal court’s decision was based on inferences from fragments of documentary evidence and testimony on patterns and practices of police agencies.
Similarly concerning is the State Bar’s assertion that discipline should be imposed for an alleged violation of Brady v. Maryland, which is a policy designed to protect the due process rights of persons facing a loss of liberty at the hands of the state. For that reason, the Brady decision and its progeny have held that even an inadvertent or unknowing failure by a prosecutor to turn over material evidence violates due process. However, in this instance, the State Bar is not seeking to protect the due process rights of an accused who is being threatened with imprisonment by the state but regulating the conduct of attorneys. This action of the State Bar is essentially asserting the State Bar can seek to revoke a prosecutor’s bar license for failure to turn over evidence that was completely unknown to that prosecutor.
Without delving too far into the merits of the factual allegations, the evidence recited by the District Court is that, “evidence obtained from the prosecution’s file indicated that the prosecution might have been aware of [the witness’s] identity, address and her telephone number.” [Emphasis added.] An attorney from the ACLU told the court in a memo that they did not received a copy of the page with the witness’s address because it was written on the back of one of the pages of the reports (the inference being the back of the pages were not copied). Mr. Trutanich testified at the hearing before the District Court that he was unable to locate the witness to serve her with a subpoena but that a copy of the subpoena listing the witness’ last known address was given to the defense.
It should be troubling to everyone, whether a supporter or Mr. Trutanich or not, that The State Bar of California has elected to bring charges 31 years after the fact, without any claim in the charges of actual knowledge by the attorney of the misdeeds that underlie the alleged misconduct. Even proposed Rule of Professional Conduct 3.8(d), which would govern prosecutorial discovery and Brady requirements, requires some scienter for there to be misconduct.
However, even if true, should a Brady violation be considered an offense exempt from any statute of limitations? The state legislature certainly does not think so; in 2015 the legislature enacted amendments to Penal Code section 141 which make it a felony crime for a prosecutor to intentionally withhold Brady evidence. Yet, the legislature did not deem it necessary to exempt that crime from the usual statute of limitations.
Finally, while the state bar might claim that it instituted proceedings only after the federal court ruling, that excuse is insufficient given that the allegations of the misconduct had been publicly raised decades before. For example, in 2000, the same claims regarding the detective and informant were raised in state habeas proceeding. After extensive discussion, those claims were rejected by the California Supreme Court in a published decision. Even if one disagrees with the Supreme Court’s conclusion and finds the federal court conclusion about the same conduct more credible, the important point is that the allegations of misconduct were in the public arena and available for the state bar to pursue at a time when witnesses were alive and memories fresher. Instead, the state bar chose to sit on its “independent source powers,” only deciding to pursue the claims when a different conclusion on the allegations of misconduct was rendered decades later.
Courts and legislatures have long held that there are very few instances where a statute of limitations should not apply to conduct, be that conduct negligent or willful. The State Bar’s assertion of a lifetime exemption from the statute of limitations for attorney misconduct, simply because the bar initiated the proceedings, is an abuse of its powers. In accordance with its stated policy reasons for statutes of limitation for crimes, the Supreme Court should place limitations on the time frame in which its administrative disciplinary arm can bring charges of attorney misconduct.
Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.
The reason I follow dead CEOs started with Dale Ratliff of Mountain Lakes NJ, former CEO of Playtex then located in Bergen NJ.
The Bennett's an Ratliff's shared backyards, Matt and Mitch Ratliff, Pete Bennett, Randy Grieg, Seth, and Rob S. were good friends, Pete had a big basement, we all used to play all night Monopoly, War or build the HO train layout in the attic.
Matt reach out to me
I was at the Contra Costa County software incubator the same day that a longtime acquaintance Tom Gonzales senior was in his office we all shared the same floor actually is IPO went off and I remember Tom saying to me AP I'm worth seventy-five million I walked by about 20 minutes later and he was worth 85 million or something like that.
Years later I saw Tom senior and Tom Jr in a bank in Lafayette and little did I know Tom Jr was dying of cancer.
They founded Distra Corp, which became commerce one which after going public became the darling of darling of Walk Street.
Years later Tom where his foundation ended up in a court room with the same wonderful attorneys connected to the Contra Costa bar Association.
The son of the former president of the bar is dead oh, so is the daughter of the former district attorney.
This is where theranos and Commerce One thread together via Balwani now being prosecuted by the SEC in connection to the failure of Theranos.
Some of the key investors came from Southern Pacific are linked to
Suspect in cop's death is killed / Fugitive wanted in Pittsburg dies in Modesto gunbattle
Charlie Goodyear, Janine DeFao, Chronicle Staff Writers
Published
Photo: Kim Komenich
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2003-04-19 04:00:00 PDT Modesto -- A fugitive parolee wanted in connection with the shooting death of a Pittsburg police officer was gunned down late Thursday at a Modesto shopping center in an exchange of gunfire with officers, authorities said Friday.
Officers acting on a tip provided by the girlfriend of 40-year-old Earl Foster Jr., wanted for questioning in the death of homicide Inspector Ray Giacomelli, spotted him using a pay phone at the College Center Shopping Center shortly after 11 p.m., police said.
Foster had been the subject of an intense manhunt since Tuesday when Giacomelli, 46, was found shot to death in a house in Pittsburg that is owned by Foster's family. The 23-year veteran of the force had gone to the house on Abbott Avenue alone to investigate a killing that had taken place there a week before.
Modesto police Sgt. Ed Steele said officers from several agencies had approached Foster in the shopping center and had been shouting commands to him when he opened fire with a Glock semiautomatic pistol.
Error 0:
The first officer to fire back -- wounding Foster -- was Kirk Bunch, an investigator with the Stanislaus County district attorney's office who was once a Pittsburg police officer, according to a source close to the case.
"Ironic, isn't it?" said Leo Baller, Giacomelli's former partner in Pittsburg, after learning the details of Thursday's gunbattle.
"Four Modesto officers began to approach him," Steele said. "They noticed he was looking at them and had a gun in his hand. He raised the gun and shot once. They fired back, and he didn't shoot any more."
Foster was pronounced dead minutes later at a Modesto hospital. None of the officers involved in the shooting was injured. At least five of them were placed on standard leave pending an investigation of the shooting.
"Mr. Foster's violent life has destroyed a family, destroyed the Giacomelli family and devastated an entire community in the city of Pittsburg," said Pittsburg Police Chief Aaron Baker at a news conference in Modesto. "His days of hurting people, of being violent with people, are over."
Asked about Foster's motive for firing on police, Baker said, "He was a three-striker. He was going back (to prison). He had nothing to lose."
Foster had a long criminal history, including numerous drug offenses, parole violations and a 1980 manslaughter conviction in juvenile court.
Contra Costa sheriff's Lt. Dan Terry, who is assisting in the case, said police had compiled a list of places in the East Bay and central California where Foster was expected to hide out. A home in Modesto near the shopping center was one of them, he said.
"We gave him every opportunity to give himself up," Terry said Friday. "He chose not to do so."
Authorities believe Giacomelli was caught off guard and shot almost immediately upon entering the Foster family home Tuesday. He had received the key to the residence from the suspect's father along with permission to search it. Officials said they think the detective believed he was searching an empty house.
"Ray didn't even get a chance to get his gun drawn," Baller said.
The Contra Costa County coroner's office said Giacomelli had been shot several times. A source close to the investigation said it appeared that Giacomelli had been shot in the face and then again while the detective was lying on the floor near the front of the home. Authorities have termed his death an "execution."
On Thursday, police in San Francisco found Foster's gold Mercedes-Benz parked at an apartment building. He was driving a black Acura when officers discovered him in Modesto.
A woman who identified herself as Foster's mother but refused to give her name visited the crime scene Friday and took pictures of bloodstains and bullet holes in storefronts and parked cars. She said authorities had not officially notified her of her son's death.
Baller, who is handling the media on behalf of Giacomelli's wife and two daughters, said Foster's death offered the inspector's family "some closure."
"The main reaction that they had to me was, 'Did anybody get hurt?' " Baller said. "And when I told them no, they said, 'At least he won't hurt anybody else.' "
Funeral services for Giacomelli will be held at noon Monday at the Good Shepherd Church in Pittsburg.
Bennett asks for homeless services from Senator Desaulnier instead his relatives murdered and his endorser indicted DA Mark Peterson convicted of a felony.
In the matter of Bennett versus Southern Pacific a witness was killed in an adjacent case the judge was given property in Montana about Bennett's attorney sided with the judge.
Bennett lost Millions Anschutz went on to buy Bill Graham Productions another client of Bennett, another client killed in another plane crash.
with the help of Contra Costa County legal counsel oh, the Contra Costa Bar Association and subsequent presidents and with the earlier version of this California State Bar plus the Contra Costa County Superior Court Bennett never knew his witness was killed.
My allegations all over this blog for close to 10 years.
Long Overdue changes too late for family the Strack relatives of Pete Bennett murdered with connections to outsourcing, Alamo 1st Ward, plus the theft of a trust, property with surreal links to the 1990 Judi Bari Bombing, the offices containing the SEC investigation of Enron lost in the demolotion of Building 7, and the 1989 witness in Bennett v. Southern Pacific.
A curious connection is SP Chairman Philip Anschutz knows SP Attorney Rick Kopf, who knows all the Bechtel CEOs via his second career as General Counsel of Fremont Group.
I write about globalization, business, technology and immigration.
Donald Trump speaks on immigration during a AFP VIA GETTY IMAGES
Showing no sense of irony, the Trump administration is celebrating the expected launch of a SpaceX rocketship at the same time Trump officials plan to restrict H-1B visas, the same type of visa the founder of SpaceX, Elon Musk, used to begin working in the United States. The new regulatory actions against employers will come days after the White House issued an executive order on “regulatory relief” for businesses.
An H-1B visa is typically the only practical way for a foreign national to work long-term in the United States. However, several sources have confirmed the Trump administration will soon implement new restrictions on H-1B visa holders and international students, intracompany transferees and likely even the spouses of high-skilled professionals.
An analysis of immigration law and regulations, as well as recent administration actions, leads to the conclusion a combination of methods will be used to implement the restrictions. Blocking New H-1B and L-1 Visa Holders: The April 22, 2020, presidential proclamation suspended the “entry” of most immigrants. (H-1B visa holders are not immigrants; they have temporary status.) The word “entry” appears more than a dozen times in the proclamation. That is because attorneys note a president’s authority under Section 212(f) of the Immigration and Nationality Act can be used against the “entry” of people, as opposed to actions inside the country. “A proclamation issued under 212(f) may only restrict the entry of foreign nationals,” according to the law firm Berry Appleman & Leiden. “It may not be used to deny a petition to change or extend status, or to deny an application to adjust status.”
Given that limitation, a new presidential proclamation may suspend the entry of H-1B and L-1 visa holders, or achieve a similar result by imposing new conditions on their entry. Administration officials have discussed preventing the entry of H-1B visa holders who are not paid at the highest wage level – Level 4 – under the U.S. government’s prevailing wage criteria, even if the individual is applying for their first job. A National Foundation for American Policy analysis concluded such a requirement would become burdensome by creating exceptionally high minimum wages for H-1B visa holders: more than $254,000 a year for a financial manager in New York City, $144,165 annually for a biochemist in Chicago, including post-docs, and $172,640 for a software developer in Silicon Valley.
L-1 visa holders are multinational executives or managers, or employees with “specialized knowledge” transferred into the United States. The job protection arguments around L-1 visa holders are puzzling, since such individuals already work for the company. Preventing their entry will discourage businesses, particularly multinational companies, from investing more in the United States. Why invest in America if the U.S. government will not let you transfer your employees into the United States?
“Preventing businesses from transferring their highly talented workers into the U.S., even temporarily, will limit their ability to do critical scientific research, build new product lines, generate economic growth and create new jobs,” said Jon Baselice, executive director for immigration policy at the U.S. Chamber of Commerce, in an interview. Using Regulatory Authority for H-1B, OPT, L-1 and H-4 Spouses: To impose new restrictions affecting international students, L-1 intracompany transferees and H-1B visa holders and their spouses the administration would need to use regulatory authority, which may include issuing regulations that have been on the agenda for months or years.
A rule on H-1B visas already on the Trump administration’s regulatory agenda would “revise the definition of specialty occupation . . . and revise the definition of employment and employer-employee relationship.” That regulation may now be issued. The topics in the potential regulation overlap with a recent settlement between U.S. Citizenship and Immigration Services (USCIS) and the business group ITServe Alliance that overturned 10 years of policies restricting employers and H-1B visa holders. (See here.)
The administration continues to target Optional Practical Training (OPT), which allows international students to work for 12 months, usually after graduation, and 24 additional months in science, technology, engineering and math (STEM) fields. A summary of a rule proposal on the agenda states: “ICE [Immigration and Custom Enforcement] will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.”
Any action against Optional Practical Training could be labeled “temporary” or a “suspension,” yet even that would make it more difficult for U.S. universities to convince international students they should study in America, particularly when countries such as Canada continue to be so welcoming. On May 14, 2020, the Canadian government announced significant flexibility for international students, including preserving the ability to work after graduation. (See here.)
An item on the regulatory agenda for L-1 visas would “propose to revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship and ensure employers pay appropriate wages to L-1 visa holders.” There is nothing in the immigration statute about a wage requirement for L-1 visa holders.
For years, the Trump administration has placed a proposed rule on the regulatory agenda to rescind an existing regulation that allows many spouses of H-1B visa holders to work – called H-4 EAD (employment authorization document). The administration could issue the rule.
In a recent government filing to oppose a group’s lawsuit against the current H-4 EAD regulation, the Trump administration made what appears to be a damaging admission: “Save Jobs’s claim of irreparable harm relies on the H-4 Rule eliminating or significantly reducing employment opportunities, meaning that the number of available information-technology jobs would significantly decline due to the H-4 Rule. But this relationship has not been shown to be ‘certain’ and ‘actual,’ rather than merely ‘theoretical.’” In other words, there is little evidence the spouses of H-1B visa holders harm U.S. tech professionals.
What type of regulations would the administration issue? William Stock of Klasko Immigration Law Partners thinks issuing a 212(f) proclamation that prevents the reentry of international students on Optional Practical Training who leave the U.S. would have an immediate but limited effect.
In an interview, Stock said it is more likely the Department of Homeland Security (DHS) would issue an interim final rule eliminating or significantly restricting OPT or STEM OPT. “An interim final rule can have an immediate effect, but can only be issued in limited circumstances and it’s not clear that a court would hold they exist here,” he said. “If that happens, schools and interest groups will go to court right away and say the rule change cannot be done as an interim final rule, and have a stronger case than if the agency had done notice-and-comment rulemaking.” He notes a court struck down an interim final rule from the Bush administration on STEM OPT, though it was given time to go through the notice-and-comment process and issue a new rule.
An interim final rule allows a rule to take effect almost immediately and would change only if an agency believes public comments justified it.
Another option, raised by Berry Appleman & Leiden (BAL), is the administration would issue “temporary final rules” in potentially multiple areas, including OPT, H-1B, L-1 and H-4 EAD. “[A]gencies are required under the Administrative Procedure Act (APA) to provide the public with adequate notice of a proposed rule followed by a meaningful opportunity to comment on the rule’s content,” according to a BAL policy update. “That process normally takes 12-18 months. However, an agency may issue a rule without prior notice and opportunity to comment when the agency for ‘good cause’ finds that those procedures are ‘impracticable, unnecessary, or contrary to the public interest.’ Put simply: the government may, under certain situations, issue a regulation that is effective immediately. In the past month, DHS has relied on that exception to the APA multiple times to issue Temporary Final Rules.”
“A Temporary Final Rule must of course be temporary, and statutes outside of immigration law limit temporary final regulations to three years,” according to BAL. “The recent H-2B and H-2A Temporary Final Rules are valid for three years and 120 days, respectively.”
William Stock provides a guidepost: “One way to tell whether the immigration hardliners win their battle with the pro-business advocates in the administration will be to see whether any changes to summer student employment, the F-1 OPT program and other temporary work visas are ‘temporary final rules’ or ‘interim final rules.’ Both types of rule changes skip the formalities and public involvement required for new regulations, but as the name implies, ‘temporary’ final rules have an expiration date while ‘interim’ final rules just change the rules without public comment. If DHS enacts substantial limitations to temporary work visa rules by ‘interim final rule,’ it will be a sign that the hardliners have won in getting the president to authorize long-term changes without public comment, using the pandemic as their excuse and opportunity.”
Analysts believe the administration may use justifications for new immigration restrictions that are contrived. Recent data from the Bureau of Labor Statistics indicate the unemployment rate in computer occupations declined between January and April 2020 – and it makes little sense to institute permanent (or semi-permanent) immigration changes in response to temporary economic problems caused by a health crisis. Analysts see little justification for the types of immigration changes being discussed, particularly since the president and top economic advisers have promised the economy will improve significantly by the fall or summer.
On May 27, 2020, a group of Republican senators, led by Senators Lindsey Graham and John Cornyn, wrote a letter recommending the president take a reasonable approach on temporary visas by putting aside the easy populist messages some have urged and focusing instead on the need for foreign-born workers who can aid the recovery, help businesses and complement U.S. workers. The senators correctly noted not all sectors of the economy have been equally affected by the fallout from pandemic lockdowns and social distancing.
Many in the business community fear that those in the administration who are “pro-growth” and supportive of immigration have numerous issues to worry about, while those most opposed to immigration, such as White House adviser Stephen Miller, spend nearly every waking hour focused on denying opportunity to as many foreign-born people as possible. They fear in a fight between the zealous and the moderate, the zealous will win, harming America and its future for years to come.
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I am the executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related
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