Michael Reiter, Attorney at Law Blog

The reasons for the recall are listed by Scott Beard, the proponent, Wendy McCammack’s appointment to the City of San Bernardino Planning Commission, Rialto-based developer, and Seventh Ward resident:

The grounds for the recall are as follows: Mr. Penman is the duly elected City Attorney, and as such is accountable for the actions of that office and of his subordinates. Mr. Penman has been derelict in his official duties by failing to properly enforce the law regarding personal use of public property by members of the Common Council. In addition, Mr. Penman’s office’s selective enforcement of City codes and his failure to timely update and codify city codes, ordinances, and other matters lawfully passed by the City Council has created confusion and insecurity in the City’s residents and businesses regarding accuracy of the City’s published law.

Council Member Virginia Marquez, First Ward

The reasons listed for the recall in the Notice of Intention are listed by the proponent, Christian Fernando Flores (who was reported in the Sun as a student at California State University, San Bernardino):

The grounds for the recall are as follows: Council Member Marquez was elected to office
in November of 2009 and has since that time has failed to protect the health, safety, and welfare
of the residents of the City of San Bernardino and demonstrated dereliction to the duties of her
elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible
program leading to the misuse of the City’s General Fund. Council Member Marquez’s actions
and failures to act, have propelled the City of San Bernardino into financial crisis, and have led
to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City. The City
of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of
the bankruptcy and its proceedings.

Further, Council Member Marquez has violated the public trust by repeatedly failing to
reach consensus with the other members of the San Bernardino City Council on basic issues of
City finances, and ignored advice of the City’s Executive Staff for the previous two years
regarding financial concerns. Her actions have led to massive reductions in City services and
police and fire personnel, causing an increase in crime rates, businesses leaving the City, and
contributed to overall blight within the City.

Council Member Fred Shorret:

The proponent of the recall against Fred Shorett, 4th Ward Council Member, Stephen T. Dawson, who is the chairperson of the United Transportation Union, states:

The grounds for the recall are as follows: Council Member Shorett was elected to office in March of 2009 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible program leading to the misuse of the City’s General Fund. Council Member Shorett’s actions and failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Council Member Shorett has violated the public trust by repeatedly failing to reach consensus with the other members of the San Bernardino City Council on basic issues of City finances which would allow the City of San Bernardino to emerge from the bankruptcy proceedings and begin revival of its economy. The City of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of the bankruptcy and its proceedings.

Mayor Patrick J. Morris:

Scott Beard, also the proponent of the recall against City Attorney James F. Penman, gives these reasons:

The grounds for the recall are as follows: Mayor Morris was elected to office in February of 2006 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by failing to veto fiscally irresponsible votes and fiscally irresponsible programs leading to the misuse of the City’s General Fund. Mayor Morris’s [sic] failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Mayor Morris has violated the public trust by repeatedly failing to facilitate consensus with the members of the San Bernardino City Council on basic issues of City finances, and ignored advice of the City’s Executive Staff for the previous two years regarding financial concerns. His action and inaction have led to massive reductions in City services and police and fire personnel, causing an increase in crime rates, businesses leaving the City, and contributed to overall blight within the City.

The original PDFs, which are not the embedded redacted versions you see here, have some metadata that explains a little about the origin of the PDFs that were obtained. The Notice of Intent involving Mayor Patrick J. Morris was created on April 28, 2013 at 10:04:50 PM, with the application being Microsoft Word 2010, with “Michael” listed as the author. The Notice of Intent to Virginia Marquez was titled C:\My Files000 — SanBernardinoMatter\NOI.2013.1stWard(Marquez).wpd, also authored by “Michael.” It was created on April 28, 2013 at 2:19:17 PM. The original file was on WordPerfect (as you can see by the extension), but the PDF was created by Acrobat Distiller 9.0.0. The Fred Shorret document was created by Microsoft Word 2010, also authored by “Michael.” It was created on April 28, 2013 at 3:40:59. The City Attorney James F. Penman document was also on Word 2010, on April 28, 2013, at 10:00:13.

What does this metadata mean? That whoever created the PDF (but not necessarily the author of the petitions), was named Michael, and that at least one of the documents was created on WordPerfect. WordPerfect is, or was, largely used by attorneys. No conclusions can be drawn from this metadata. The Michael may refer to Michael McKinney, the Orange County-based publicist for the recall proponents. It could be someone else entirely.

Unfortunately, the petitions to recall Second Ward Council Member Robert Jenkins, Third Ward Council Member John Valdivia, Fifth Ward Council Member Chas Kelley, Sixth Ward Council Member and Mayoral Candidate Rikke Van Johnson and Seventh Ward Council Member Wendy McCammack were unavailable.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

E: michael@michaelreiterlaw.com

A: 1255 W. Colton Ave. Suite 104,

Redlands, CA 92374

T: (909) 708-6055

W: http://michaelreiterlaw.com

Filed under Bankruptcy, Charter, City Attorney, City Clerk, City Council, City of Los Angeles, City of San Bernardino, City Treasurer, Elections, Mayor, Municipal Law, San Bernardino, San Bernardino City Attorney's Office, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code, State of California Tagged with Charter of the City of San Bernardino, Christian Fernando Flores, City of San Bernardino, Fred Shorett, James F. Penman, John Valdivia, Michael McKinney, Patrick J. Morris, Recall, Rikke Van Johnson, Robert Jenkins, San Bernardino, Scott Beard, Stephen T. Dawson, Virginia Marquez, Wendy McCammack

New “Administrative Fee” for filing a civil action in the United States District Court, Central District of California starting May 1, 2013

April 30, 2013 Leave a comment

While waiting in the Spring Street Courthouse in Los Angeles last week, I was browsing the wall outside the clerk’s office and found this notice:

Notice is hereby given that effective May 1, 2013, a new administrative fee of $50 will be added to the current $350 filing fee for a Civil Action, Suit or Proceeding, for a total filing fee of $400. This new administrative fee is part of the “District Court Miscellaneous Fee Schedule,” established by the Judicial Conference of the United States, pursuant to 28 U.S.C. § 1914. This fee does not apply to persons granted in forma pauperis status under 28 U.S.C. § 1915 or to applications for writs of habeas corpus.

Still cheaper, if you have federal question or diversity jurisdiction, than Superior Court, and you are likely to get a trial date sooner, too.

E: michael@michaelreiterlaw.com

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

W: http://michaelreiterlaw.com

Filed under Civil Procedure, Federal Court, Filing Fees Tagged with Central District of California, in forma pauperis, United States District Court

The Recall Process Under the Charter of the City of San Bernardino

April 29, 2013 1 Comment

The current Charter of the City of San Bernardino, Article VII is entitled “Initiative, Referendum and Recall.” Section 122 of the Charter reads (with annotations):

Section 122. The Recall. Proceedings may be commenced for recall of the

holder of any elective office of this City and the election of a successor of the

holder sought to be removed by the service, filing and publication of a notice of

intention to circulate a recall petition. Such proceedings may not be commenced

against the holder of an office unless, at the time of commencement, the holder

has held office for at least ninety days and no recall petition has been filed against

such holder within the preceding six months. A petition demanding the recall of the

officer sought to be recalled shall be submitted to the City Clerk. The petition shall

be signed by not less than fifteen percent (15%) of the voters of the City, or in the

case of a City Council Member elected by ward twenty-five percent (25%) of the

voters of that ward, according to the County Clerk’s last official report of

registration to the Secretary of State. No signature may be affixed to the petition

until the proponents have served, filed and published a notice of intention to

circulate a recall petition, containing the name of the officer sought to be recalled

and the title of his/her office, a statement in not more than 500 words of the

grounds on which the recall is sought, and the name and address of at least one,

but not more than five proponents. The notice of intention shall be served,

personally or by certified mail, on the officer sought to be recalled, and a copy

thereof with a certificate of the time and manner of service shall be filed with the

clerk of the legislative body. Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed. The petition

shall bear a copy of the notice of intention, statement and answer, if any. If the

officer has not answered, the petition shall so state. Signatures shall be secured

and the petition filed within ninety (90) days from the filing of the notice of intention.

If such petition is not filed within the time permitted by this section, the same shall

be void for all purposes. The signatures to the petition need not all be appended to

one paper; but each signer shall add to his/her signature his/her place of

residence, giving the street and such other identification as may be required by the

registration law. One of the signers of each such paper shall make oath before an

officer qualified to administer oaths, that the statements therein made are true, and

that each signature to the paper appended, is the genuine signature of the person

whose name purports to be thereunto subscribed. Within thirty (30) days after the

date of filing such petition the City Clerk shall examine and ascertain whether or

not said petition is signed by the requisite number of qualified electors and, if

necessary, the Council shall allow extra help for that purpose, and the City Clerk

shall attach to said petition a certificate showing the result of said examination. If,

by the City Clerk’s certificate, the number of signatures on the petition is shown to

be insufficient, it shall be returned forthwith by the Clerk to the filer(s) thereof who

shall have an additional thirty (30) days from the date the petition is returned to

them by the Clerk to obtain the required number of signatures. The City Clerk shall,

within thirty (30) days after such additional thirty (30) day period to obtain

additional signatures, make like examination of said petition, and, if his/her

certificate shall show the same to be insufficient it shall be void for all purposes. If

the petition shall be found to be sufficient, the City Clerk shall submit the same to

the Council without delay and the Council shall thereupon order and fix a date for

holding said election, not less than fifty (50) days, nor more than seventy (70) days

from the date of the City Clerk’s certificate to the Council that a sufficient petition is

filed.

The ballots used when voting upon said proposed recall shall contain the

words “shall (title of office and the name of the person against whom the recall is

filed) be recalled?” and the words “yes” and “no.”

The Council and the City Clerk shall make, or cause to be made, publication

of notice and all arrangements for conducting, returning and declaring the results

of such election in the same manner as other City elections.

Qualified candidates to succeed the person against whom the recall is filed,

shall be listed on the ballot, except that the incumbent shall not be eligible to

succeed himself/herself in any such recall election.

In any such removal election, if a majority of the votes cast is for “yes” on

the question of whether or not the incumbent should be recalled, the candidate

receiving the highest number of votes shall be declared elected. The incumbent

shall thereupon be deemed removed from the office upon qualification of his/her

successor. In case the party who received the highest number of votes should fail

to qualify within ten (10) days after receiving notification of election, the office shall

be deemed vacant. The successor of any officer so removed shall hold office

during the unexpired term of his/her predecessor. (Effective March 16, 2005)

Any elected official in the City of San Bernardino can be recalled using this procedure. The limitations are stated above in which the office holder must be in office at least 90 days, and no recall petition has been filed against the office holder in the preceding six months. The elected officials of the City of San Bernardino are the Mayor, the seven members of the Common Council, the City Clerk, the City Treasurer, and the City Attorney.

The Municipal Code further gives the procedure for recall elections as follows:

2.56.160 Recall elections.

A recall election to remove an elected officer pursuant to Charter Section

122 shall be ordered, held and conducted and the result thereof made known and

declared in the same manner provided in this chapter for municipal primary and

general elections except as follows:

A. Time for Obtaining Signatures. Nomination papers shall be issued and

verification deputies appointed to obtain signatures to nomination papers of

any candidate at any time not earlier than the thirty-fifth day nor later than

five p.m. on the twenty-ninth day before the recall election.

B. Date filed with City Clerk. All nomination papers shall be filed with the City

Clerk not later than five p.m. on the twenty-ninth day before the recall

election.

C. Not earlier than the thirty-fifth day, nor later than the tenth day before a recall

election, the City Clerk shall publish a notice of the election at least once in

one or more newspapers published and circulated in the City. The notice

shall be headed “Notice of Election,” and shall contain a statement of:

1. The time of the election;

2. The offices to be filled, specifying full term or short term, as the case

may be;

3. The hours the polls will be open.

D. Absentee Ballots. Not earlier than the twenty-sixth day, nor later than the

seventh day before a recall election, any voter entitled to vote by absent

voter ballot as provided in Elections Code Section 14620 [See now §3003],

may file with the City Clerk either in person or by mail, his written application

for an absent voter’s ballot. The application shall be signed by the applicant,

shall show his place of residence, and shall make clear to the City Clerk the

applicant’s right to a ballot.

Applications received by the City Clerk hereunder on or after the

fortieth day but prior to the twenty-sixth day before election shall not be

returned to the sender, but shall be held by the City Clerk and processed by

him following the twenty-sixth day prior to election in the same manner as

if received at that time.

(Ord. 3601 (part), 1976; Ord. 2048 §10, 1954.

E: michael@michaelreiterlaw.com

A: 1255 W. Colton Ave. Suite 104,

Redlands, CA 92374

T: (909) 708-6055

W: http://michaelreiterlaw.com

Filed under Charter, City Attorney, City Clerk, City Council, City of Los Angeles, City of San Bernardino, City Treasurer, Los Angeles County, Mayor, Municipal Law, San Bernardino, San Bernardino City Attorney's Office, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code, State of California Tagged with Charter of the City of San Bernardino, City of San Bernardino, San Bernardino

Never Underestimate The Opposition Attorney

April 24, 2013 Leave a comment

When I was a teenager, I attended a program in Washington D.C. in the law. Though I had wanted to be an attorney for about seven years at that point, I had actually applied to be in a program regarding national politics, but that was full, so I went to the legal program instead.

The program was very interesting. We visited a juvenile correction facility, we went to the local District of Columbia courts, we visited the National Rifle Association and the American Civil Liberties Union, and though I cannot remember exactly because I’ve been a number of times, the Supreme Court and Congress. However, I recall in particular one visit to a public defender in the local courts. On each visit, someone gave a presentation and the students were able to interact with the presenter.

The attorney with the public defender’s office made a great impression on me. This attorney had the passion and zeal of a true believer. He said that people asked how he could sleep at night defending criminals. He said “like a baby.” He made one student, whose uncle was murdered, cry. He spit venom on many occasions, most memorably against non-public defender appointed attorneys whom he labeled as “soup-on-their-tie lawyers.”

Soup-on-their-tie lawyers. Meaning, a slovenly attorney, from a ninth-tier law school, who barely passed the bar exam, of questionable ethics and practices, who was never prepared, always took the short cut. The image of that lawyer is burnt into my brain. At one of my previous employers, this kind of attorney was referred to as a “generic discipline-able attorney.”

As I grow older, however, let me caution newer attorneys not to underestimate the opposition attorney. As a society, we have a tendency to overemphasize conventional wisdom. The person wearing glasses is intelligent. Or on the other side of the coin, someone who looks like they slept in their suit (or spilled soup on their tie) is incompetent.

As a lawyer, you should not underestimate the opposition attorney, even if they have made a few mistakes along the way. Even the worst attorney in the world sometimes stumbles into a great case. Remember what my Theory of Knowledge teacher taught me: even a broken clock is right twice a day. Do not be lulled into a false sense of confidence because of who is opposing you. You still need to do your homework and do your job. Particularly if you are a civil defense lawyer. You usually do not get to pick your cases. The plaintiff’s lawyer usually does get to pick their cases. Sometimes the case is better than you initially think. Thinking a good case will go away because of the opposition attorney is an easily avoidable mistake.

Address: 1255 W. Colton Ave. Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Filed under Case Management, Civil Procedure, Due diligence, Law Practice Management, Legal Career Advice, Legal Research, Personal Injury Law Tagged with Attorney at Law, legal career advice, Michael Reiter

Why are legal pads canary yellow?

April 18, 2013 Leave a comment

There are a few short answers. They don’t have to be canary yellow, they don’t have to be legal size, they do have to 1.25 inch side margin, and no one knows for sure. The best researched article on the subject is Old Yeller, The Illustrious History of the Yellow Legal Pad, Suzanne Snider, Legal Affairs, May/June 2005. This has the best answers to the question.

I am transitioning away from canary legal pads because they don’t scan right. The yellow comes out blurred for some reason, and if I ever have to convert my scanned notes into printed notes, it doesn’t make sense to use that much yellow ink.

Jay Foonberg, in his seminal How to Start & Build A Law Practice, 5th Edition, relates “Carry a yellow legal pad with you whenever you go to a public place. When you have a yellow pad with you, you are loudly, but nonintrusively, proclaiming to every one who can see the pad that you are a lawyer. Everyone knows that lawyers use yellow pads and very few people who are not lawyers use yellow pads.” Id. at pg. 142.

Anecdotally, and with all due respect to the amazing Jay Foonberg, I have not found that to be the case. The only time that people ask me if I am a lawyer is when I am in the courthouse hall and they have a question. Though I sometimes have a yellow legal pad, I am being asked because I am wearing a suit and tie and I am standing in front of a closed courtroom looking at the day’s calendar. Those contacts are not new business, but people needing assistance with the calendar.