SAN DIEGO - A judge Monday granted a temporary restraining order stopping the Padre Dam Municipal Water District from doing further construction on a planned reservoir and pumping station near Lake Jennings Park Road and Old Highway 80 on a recently unearthed Indian burial site.
The Viejas Band of Kumeyaay Indians said the restraining order issued by Judge Judith Hayes will halt the water district from further desecrating the burial and ceremonial ground. A hearing is scheduled June 25 to make the injunction permanent...
Judith Hayes believes in free speech for some people, as shown by this ruling from Judge Hayes in the Digital Cornerstone v. Kevin Carmony case:
"...the Defendant had a bona fide noncommercial use for the website, the Court finds the general purpose of the website to be a free speech forum wherein Defendant criticized the management of Plaintiff. ..the Defendant at no time harbored a bad faith intent to profit from a registered mark and that his use of the website undertaken to inform consumers and criticize Plaintiff's management constituted a lawful use of the site."
But Judge Hayes came to a very different conclusion about free speech in a case where there was no attempt to fool people about who owned the website, and no profit was made.
The possible explanations for her behavior in my case are considerably narrowed by her recent ruling in Digital Cornerstone v. Kevin Carmony.
One difference between my case and the Kevin Carmony case is that I'm a school teacher, not a CEO, and I'm representing myself. Judge Hayes apparently sees me as someone whose rights can be easily violated, and no one will notice. Clearly, she sees Stutz Artiano Shinoff & Holtz law firm as a group of people whom no schoolteacher should ever criticize, no matter how much money they charge the public or how many documents that refuse to produce. The firm walked out of its deposition, and the lawyer most involved in my case refused to show up for his deposition. This was fine with Judge Hayes. I wonder if Digital Cornerstone also walked out of its deposition? I'm sure Carmony's lawyer Gil Cabrera wouldn't let the plaintiff and Judge Hayes get away with such shenanigans. I'm trusting that in my case, the Court of Appeal will put a stop to the shenanigans of Stutz law firm and Judge Hayes.
The odd thing is that my case is much clearer and simpler than the Carmony case. My website is a purely public interest website. I never allowed advertisements on it, much less advertisements from competitors of the people I criticized. I never paid a premium ($6000) to get a domain name that was likely to fool people into thinking my site was owned by the very people I was criticizing, as Carmony did. My site has my own name: mauralarkins.com. Judge Hayes and her research attorney Monica Barry should have had no trouble seeing that my case was completely different from Del Junco v. Hufnagel, particularly since they found a difference between Freespire.com and the website in the Del Junco case.
Judge Hayes made the above ruling in the Carmony case just over a month after this ruling slapping me with $3000 in contempt sanctions for not erasing every mention of Stutz law firm from my website. (Hayes' ruling in my case is so brazenly unconstitutional that Michael Robertson look like a free speech advocate compared to this incarnation of Judge Hayes.) Clearly, Hayes knows how to act like a good judge when she knows she's being watched. She can be quite the stickler for the appearance of integrity. For example, it was rather extreme for her to recuse herself just because her bailiff's daughter was on a high school girls sports team. But she refused to recuse herself in my case.
I keep asking myself why Judge Hayes would act as she has in my case, regardless of whether she thought she could get away with it. What was her motivation? Perhaps District Attorney Bonnie Dumanis has a theory about this. She forced Judge Hayes out of the criminal courts even though both Dumanis and Hayes share a conservative philosophy. Dumanis seems to consider Judge Hayes' behavior on the bench to be unpredictable.
Freespire.com apparently exists to criticize Michael Robertson. From the home page of the website: "Freespire.com is dedicated to shedding light on the REAL Michael Robertson. Robertson tried unsuccessfully to shut down this site, as he clearly doesn't want the truth about him known. We've seen Robertson go to great lengths to create a skewed public persona, quite different from the one you will hear about from those who know him..."
I could say these same words about Stutz, Artiano Shinoff & Holtz, the lawyers who are suing me on their own behalf.
But my site isn't limited to criticizing one person or even one group of people. It covers a broad range of education issues.
Here's what Wikipedia says about Michael Robertson: "Michael Robertson (born 1967) is the founder and former CEO of MP3.com, which quickly became one of the most popular Internet music sites. In the years following his departure from MP3.com, Robertson launched several small start-up companies, including Linspire, SIPphone, MP3tunes, and Ajax 13..."
In an interview today with Linux-Watch, controversial Linux leader Kevin Carmony confirmed rumors that he had resigned as CEO of desktop Linux vendor Linspire on July 31. Carmony said he plans to work on several of his own business projects, and on Mitt Romney's presidential campaign.
Carmony said that, after six years at Linspire, it was time to move on. Projects he plans to work on include continuing as Chairman of the Board of Sadie's, a nationwide children's photography studio chain, and serving as CEO of Dating DNA, an online dating service based on social networks. In addition, Carmony will be working more on Mitt Romney's campaign to become the Republican candidate for the U.S. Presidency in 2008.
While he may be leaving Linspire, Carmony said, "I will always be a big supporter of Linspire and desktop Linux." And, "I will always be a desktop Linux user."
Carmony also said that Linspire is stronger than ever. "I can't speak for Linspire now, but I believe the upcoming release of Freespire 2.0 and open CNR (Click N' Run) will be great for Linspire and desktop Linux."
"With the new Freespire coming along, the continued push of Linspire to our OEMs [original equipment manufacturers], and CNR making it easy for other Linux desktop distribution users to install software, Linspire is doing great, and it was time for someone else to take it forward from here," Carmony added.
Carmony also said his resignation, contrary to some rumors, had nothing to do with any disagreement with Linspire's primary owner Michael Robertson, or with fallout from either of Linspire's recent deals with Microsoft, which covered technology licensing and patent indemnification.
Carmony joined Linspire, then known as "Lindows," in June of 2001 to become its president. Later, he became the company's CEO...
A December 11, 2009 injunction prepared by Stutz law firm and signed by Judge Judith Hayes of San Diego Superior Court says I am permanently banned from mentioning the names of Stutz law firm or its lawyers. This injunction is clearly unconstitutional. But Judge Hayes knows that, right? She's read the following cases, I trust. Or is it possible that she simply doesn't understand constitutional law?
Yesterday, a California appellate court struck down a brazenly unconstitutional preliminary injunction prohibiting two defendants from making "false and defamatory statements" about, or publishing the "confidential personal information" of, Thomas Evans, a deputy sheriff in San Diego. The case, Evans v. Evans, 2008 WL 2009669 (Cal. Ct. App. May 12, 2008), involves a nasty post-divorce dispute between Thomas Evans and his former wife, Linda Evans, and her mother, Shirley Preddy. Linda and Preddy allegedly posted false statements about Thomas on various websites, filed complaints about him with his employer, and published confidential information from his medical and financial records on the Internet. The lower court granted Thomas a broad preliminary injunction against their alleged misconduct, without specifying any particular forbidden statements or defining what "confidential personal information" means.
The appellate court held that the preliminary injunction was an unconstitutional prior restraint on speech, and that it was unconstitutionally vague because it failed to alert Linda and Preddy as to what conduct would violate the court's order. The case itself is relatively prosaic; it is interesting largely because it demonstrates yet again just how unfamiliar many lower court judges are with basic First Amendment principles. Beyond that, it tells us two important things about California law relating to prior restraints:
1. The venerable principle that courts cannot enjoin alleged defamation before trial still holds despite the Calfornia Supreme Court's decision in Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (2007). Not a huge surprise. According to Evans, Balboa means only that a court may order a defendant not to make certain specific statements found at trial to be false and defamatory.
2. A court has more leeway to prohibit the publication of private personal information than to prohibit publication of allegedly false statements... the lower court would be "fully justified" in prohibiting the disclosure of Thomas's telephone number, address, and Social Security number on the Internet, especially because he is a police officer...
BALBOA ISLAND ALLOWS COURTS TO ISSUE PRIOR RESTRAINTS ONLY FOR SPECIFIC STATEMENTS THAT HAVE BEEN FOUND TO BE DEFAMATORY
The California Supreme Court ruled last week that it is constitutional for courts to issue limited injunctions prohibiting defendants from repeating statements that were determined at trial to be defamatory.
The ruling arose from a case where the defendant, Anne Lemen, vocally criticized and protested the noise and activities occurring at a bar, the Balboa Island Village Inn, close to her home.
According to the court's majority opinion, Lemen told the neighbors that there was child pornography, drug dealing, and prostitution going on in the Village Inn. She also videotaped customers and made derogatory comments to employees.
In October 2001, the Village Inn sued Lemen for nuisance, defamation and interference with business, and sought a court order against Lemen.
The trial court agreed with the Village Inn and granted a permanent injunction prohibiting Lemen from contacting the inn's employees; from repeating certain defamatory statements, including that the bar "acts as a whorehouse" and "encourages lesbian activities"; and from filming within 25 feet of the Village Inn. The order applied not just to Lemen but also "her agents" and "all persons acting on her behalf."
The appeals court overturned most of the injunction...
Seven minutes after I created this post I got an email from Stutz Artiano Shinoff & Holtz saying, in so many words, that the black hole that mysteriously sucks up proposed orders and judge's orders at Stutz law firm had abated, and Stutz was able to find a letter mailed to the firm two days ago. (Or perhaps I should say that Stutz was able to admit that it had the letter in its possession.)
Two days ago I had served Stutz with a check for $3000 for sanctions. Judge Judith Hayes imposed the sanctions because I violated her shockingly unconstitutional PERMANENT injunction NEVER TO MENTION THE NAME OF STUTZ ARTIANO SHINOFF & HOLTZ on my website.
Yesterday and today I asked Stutz, via phone calls and emails, if the check had arrived. After all my efforts, the only response I got was an email that said, "Who was it addressed to? That may make it easier to locate. Thank you. -- Richard"
Perhaps Richard was at a loss because his mentors Ray Artiano, Daniel Shinoff and Jeffrey Wade were not available to tell him whether or not to tell the truth about receiving my check. I'm guessing he was able to get an okay from one of them at around 2:28 p.m. today, so at last he told the truth in an email: "Please disregard my last e-mail, the check has arrived. Thank you. -- Richard"
This was the fifth incident, since Stutz law firm's defamation case against me began, that critically important documents in the case disappeared into the noxious ether that seems to permeate the firm's office.
NOTE TO JUDGE HAYES: This incident illustrates why we Americans keep the First Amendment to our Constitution. If law firms that represent public entities were free to cheat and lie, then government would become impossibly corrupt. Free speech keeps government honest, or at least it pushes it in that direction. We've got a long way to go until we actually have honest public entities, it seems. Why are you so intent on keeping the public ignorant of the truth about Stutz law firm?
The North County Times loves controversial San Diego County Office of Education Attorney Daniel Shinoff, or at least it seemed so when they created a pretty puff piece about him in 2003. So why have they erased the story from their archives, and in such a clumsy manner?
My guess: because he asked them to do so.
Why? Because it contained information that proved that Shinoff filed a false (or at least highly misleading) document as an exhibit for his declaration in a defamation suit. It was an important declaration. The judge relied on it to make her decision in a summary judgment.
In some cases Stutz doesn't seem to evaluate the law and the facts of the case, just whether their public entity client can get away with wrongdoing.
For the past year I've gotten the chills every time I thought of the years Judith Hayes spent as a criminal judge. If she treated me with so much contempt, and disregarded the law in my case, I reasoned she must have done the same thing to at least some criminal defendants, particularly the ones who didn't have their own lawyers. (Public defenders are so overworked they simply don't have time to give a lot of time to each defendant.) I wonder how many falsely-accused people went to jail because of Judith Hayes.
Click on image to enlarge.
See the injunction on which this ruling is based. According to case law, this injunction is wildly unconstitutional.
I was surprised recently when I read that Judith Hayes was actually ousted from the criminal courts. I was further surprised that her removal was not for behavior such as what I have witnessed. In fact, she was boycotted by Bonnie Dumanis because of her surprising leniency to at least one particular criminal defendant:
...Hayes was boycotted just months after Dumanis took office in 2003. The former state and federal prosecutor now hears civil cases in downtown San Diego.
She was challenged soon after dismissing murder charges in the middle of a trial against Michael Savala, who was accused of fatally shooting two bouncers at a Bonita restaurant after the prosecution had presented its case... --San Diego Union Tribune
Here's the problem with what Judge Hayes' decision, and the reason Bonnie Dumanis was so outraged. The killer went home and got a weapon and came back and committed the murders. That's definitely NOT a classic crime of passion. There is a BIG question here, which requires the taking of evidence and a jury's finding of fact (not a judge's): what was the killer's psychological state? Judge Hayes isn't God. She doesn't know the answer to this question. A more restrained and respectful jurist would have had the jury decide this question. But this leaves me wondering why Judge Hayes did this. What would possess a Republican conservative to suddenly go soft on a criminal?
I have to agree with Bonnie Dumanis that Judge Hayes can not be trusted to appropriately apply the law.
The injunction ruling on which the above contempt finding is based is being appealed.
RELATED STORY: BLOG BLOCKED IN CHINA See posts about Google and China.
It's a mystery why this blogger removed an important story from her blog in China. I'm thinking she probably didn't get a call from Judge Judith Hayes. I'll bet she got a call from someone even scarier.
HONG KONG — A Hong Kong actress-singer has removed a news story about an activist's court case from her mainland Chinese blog, purportedly to placate angered fans, underscoring the difficulty of navigating sensitive subjects in China's tightly controlled cyberspace.
Hong Kong entertainer Gigi Leung on Wednesday posted an excerpt of a news story about the trial of Zhao Lianhai on her blog hosted by mainland Internet company Sina Corp., Leung's agent, Jacky Wong, told The Associated Press in a phone interview Thursday.
Zhao had advocated on behalf of parents whose children were sickened in a tainted milk scandal and pleaded innocent to charges of inciting social disorder on Tuesday.
But Leung removed the posting later the same day, Wong said, sparking speculation that the Hong Kong actress-singer was bending to Chinese censors. "Gigi Leung is muzzled," Hong Kong newspaper Apple Daily wrote in a headline...
Judge Hayes says that I don't understand Constitutional law (click on image above to read her decision). She's right that I don't understand that the Constitution allows Judge Hayes to impose broad prior restraints on a citizen journalist in order to protect law firms that appear before her. Well, not ALL the law firms who appear before her, but one of them, a group that was founded by two members of what some school-watchers think of as the Poway Pow-wow, lawyers who live in the suburb beloved by Judge Hayes.
What is this constitutional subtlety that Judge Hayes accuses me of not understanding? It seems to be the Hayes Doctrine, devised to fill a gaping hole in the legal system of the United States--a hole that allows citizens to become informed about actions of public entities that their lawyers don't want the public to know about.
In my benighted state, I believe that the law that Hayes is supposed to follow is Balboa Island Village Inn v. Lemen, 156 P.3d 339 (Cal. 2007), a decision striking down an overly broad injunction on speech. (Judge Hayes' injunction says I must remove every mention of Stutz law firm from my websites, and never mention their name again. Balboa Island says that court may only apply prior restraints to specific statements found to be defamatory.
Although the University continues to be under censure by the American Association of University Professors (AAUP) for academic freedom violations and continues to ban certain speakers from campus, CUA has made a general statement of policy that the academic freedom of its faculty and students will be respected.[18] It considers academic freedom a "fundamental condition for research and dissemination of information."[18] The policy sets forth its respect for the right and responsibility of its faculty and students to (i) conduct research, (ii) publish their findings, and (iii) discuss ideas according to the principles, sources and methods of their academic disciplines.[18] The University further "sanctions" the investigation of "unexplored phenomena, advancement of knowledge, and critical examination of ideas, old and new" and "accepts the responsibility of protecting both teacher and student from being forced to deny truth that has been discovered or to assert claims that have not been established in the discipline."[18]
However, the University specifically provides that "theologians" in the University are "expected to give assent to the teachings of the magisterium in keeping with the various degrees of assent that are called for by authoritative teaching."[18]
Judge Judith Hayes made a mistake of law on February 18, 2010. I learned this from this article, which notes, "California law prohibits the recording–without consent of all parties–of a “confidential communication.” (CA Penal Code Sec. 632(a)(emphasis supplied)).
The judge was concerned that I remembered what her clerk had said to me, and asked if I had recorded the conversation. I hadn't. But I did grab a scrap of paper and started taking notes when the clerk began to say repeatedly, "There is no injunction." I have received no apology from the clerk for misleading me, but I have received a $3000 contempt sanction for violating the injunction that supposedly didn't exist.
The judge expressed no concern about the clerk's misleading statements, although Judge Hayes acknowledged the accuracy of my quotes by saying that it seemed like I had recorded the conversation.
Then the judge made her mistake of law. She told me it would be illegal for me to record my conversation with her clerk when I called and asked for a hearing date. It seems Judge Hayes needs some law school refresher courses. There's nothing confidential about a request to a court for a hearing date.
By Brent Schrotenboer San Diego Union-Trib March 6, 2009
A San Diego Superior Court judge Friday officially ended the season for the Eastlake High girls basketball team.
After hearing arguments from both sides, Judge Jeffrey Barton told the team he was sorry but that there was enough evidence to support a determination that the team had used an ineligible player. By rule, that means the team must forfeit the 13 games in which the player participated and be kicked out of the playoffs.
...Barton's ruling was especially frustrating for Eastlake players and parents because they thought they were on the verge of winning a restraining order Thursday from a different judge, Judith Hayes, who said she wasn't convinced the player had falsified her residency. But just as Hayes was about to rule, she learned that her bailiff had a daughter on the Eastlake junior varsity team. To avoid the appearance of bias, Hayes recused herself from the case without ruling. This led both sides to re-argue their case Friday in front of a different judge.
To bolster its case, the section on Friday filed the neighbor's declaration, which helped sway the new judge. Brian Burchett, an attorney for Eastlake, said the neighbor wouldn't know where the family really lived because the neighbor didn't live close enough to verify the family's comings and goings.
In the end, Barton made his ruling based on whether the decision by the CIF's San Diego Section was supported by substantial evidence.
“It's the court's decision that in applying that standard, I can't grant the relief that's requested by the petitioner,” Barton said. “In looking at the evidence that's been provided, there is substantial evidence to support the CIF's actions in this case.”
Boycotting of judges nothing new to DA At least three others targeted since 2003 By Greg Moran, UNION-TRIBUNE STAFF WRITER February 28, 2010 Bonnie Dumanis took office in 2003.
When District Attorney Bonnie Dumanis quietly lifted a months-old challenge of Superior Court Judge John Einhorn late last month, it seemed that an uncommon event — the wholesale boycott of a veteran judge’s courtroom — had come to an end.
But Einhorn was not the first judge to have been singled out for such treatment by Dumanis.
Since 2003, prosecutors have targeted at least three other Superior Court judges for whole or partial boycotts.
Sources in the courthouse, the local defense bar and the District Attorney’s Office said all three were targeted shortly after they made rulings that the District Attorney’s Office apparently disagreed with. Two of those judges, Judith Hayes and William McAdam, no longer work in the criminal courts...
[Judge Judith] Hayes was boycotted just months after Dumanis took office in 2003. The former state and federal prosecutor now hears civil cases in downtown San Diego.
She was challenged soon after dismissing murder charges in the middle of a trial against Michael Savala, who was accused of fatally shooting two bouncers at a Bonita restaurant after the prosecution had presented its case. Hayes said the slayings were not premeditated murder but were committed in the heat of passion — “a classic voluntary manslaughter,” as she said.
Savala eventually pleaded guilty to that lesser charge and received a 13-year sentence...
