S.C. Declines Review in Burbank Council Establishment Clause Case

By a MetNews Staff Writer

The California Supreme Court yesterday declined to review a Court of Appeal ruling that prevents the Burbank City Council from opening its meetings with “sectarian prayer.”

Justices Marvin Baxter and Janice Rogers Brown were the only members of the court who voted to review the Oct. 7 ruling of this district’s Div. Two in Rubin v. City of Burbank, 101 Cal.App.4th 1194.

The appellate panel affirmed Los Angeles Superior Court Judge Alexander Williams III’s ruling that an invocation offered “in the name of Jesus Christ” offended the First Amendment’s Establishment Clause.

Williams upheld a challenge brought by Irv Rubin. The late Jewish Defense League head sued in 1999 after attending a council meeting in order to express his views on Burbank Airport expansion.

Rubin, who was joined in the suit by Roberto Gandara, a Catholic who had attended an earlier council meeting, took issue with the invocation led by a member of the Church of Jesus Christ of Latter-day Saints, who declared: “We are grateful heavenly Father for all that thou has poured out on us and we express our gratitude and our love in the name of Jesus Christ.”

Burbank council meetings have, since 1953, opened with invocations—usually given by members of the Burbank Ministerial Association. The group is not entirely Christian, but the evidence before Williams indicated that it had no Muslim, Buddhist, Hindu or Baha’i members.

Justice Katherine Doi Todd, writing for the Court of Appeal, distinguished Marsh v.Chambers, 463 U.S. 783 (1983), which held that having a state-salaried chaplain lead a daily prayer in the Nebraska legislature did not violate the Establishment Clause.

Doi Todd noted the Marsh court’s finding that the chaplain’s position had not been used to “proselytize or advance any one, or to disparage any other, faith or belief.” The justice also cited a footnote indicating that the chaplain had, in 1980, ceased referring to Jesus after a complaint from a Jewish legislator.

Doi Todd agreed with Williams that the inclusion of specific references to Jesus in a government body’s invocation is not permitted by Marsh and constitutes an Establishment Clause violation.

Rubin and Gandara’s attorney, Roger Jon Diamond, said he was gratified the case would remain precedent in California. He said he had recently spoken to Rubin’s widow, Shelley Rubin, and that she hoped the ruling would stand in order to “carry on the spirit of Irv Rubin.”

Deputy City Attorney Juli Scott, who argued the case for Burbank, said the council had authorized taking the case to the U.S. Supreme Court. Diamond said he favors having the high court hear the case in order to set a national precedent.

The city’s position was backed in amicus briefs by the American Center for Law and Justice, the litigating arm of the conservative Christian movement, as well as by 34 other California cities. The Council for Secular Humanism, represented by former legislative candidate Edward Tabash, supported the trial court’s ruling.

The justices yesterday also denied review of lower court rulings that a Santa Monica lawyer, who claims that a Westside law firm botched the settlement of her wrongful termination suit against a former employer, owes the firm more than $160,000 in fees.

None of the high court’s justices voted to grant review of the ruling of this district’s Court of Appeal, Div. Three, in Donfeld, Kelley & Rollman v. Bass, B150938. The justices also were unanimous, however, in rejecting the law firm’s request that the Court of Appeal opinion by Presiding Justice Joan Dempsey Klein be certified for publication.

Klein agreed with Los Angeles Superior Court Judge Jon Mayeda that Daphne Sheridan Bass should be required to pay nearly the full amount of Donfeld Kelley’s contingency fee because the terms on which she settled the case after firing the firm were nearly identical to those her lawyers had negotiated.

Bass retained the firm to sue her former employer, Giorgio Beverly Hills, Inc., and its parent company, Procter & Gamble, in 1997. She agreed to pay a contingency of 33 percent if the firm settled the case prior to a final status conference or pretrial conference, or 40 percent if it settled at a later stage.

After 17 months of litigation, including nearly 20 days of depositions, the case went to mediation. After a full day of negotiating, the parties signed a written memorandum setting forth settlement terms, including a $525,000 lump sum payment to Bass.

Bass later presented P&G’s lawyers with a proposed formal, written agreement that she drafted herself. The proposal provided for payment of the settlement in installments, secured by a standby letter of credit.

The defendants rejected the proposal and moved to enforce the handwritten agreement under Code of Civil Procedure Sec. 664.6. A Los Angeles Superior Court judge granted the motion, and Bass fired her lawyers before the order was signed.

The Donfeld firm filed a lien for its 33 percent contingency of over $170,000, sued Bass for the money, and obtained an order requiring that the amount of the lien be taken out of any settlement fund and placed in trust pending resolution of the fee dispute.

Mayeda, after a nine-day bench trial, ruled that the firm had proven its right to quantum meruit. He also rejected Bass’ cross-complaint, in which she claimed that attorneys Paul Kelley and Amy Semmel had pressured her into settling and had been negligent in not negotiating a provision for payments over time and not advising her of the tax consequences of the settlement.

On appeal, Bass argued that the fee claim was excessive because the handwritten agreement was nothing more than a “deal memo,” that her own efforts substantially enhanced the value of the settlement after the lawyers were fired, and that the lawyers had not properly negotiated the agreement or adviser her as to its terms.

But Klein said the trial judge was entitled to credit the attorneys’ testimony that Bass told them a week prior to mediation that she was not interested in a settlement payable over time. The jurist also rejected Bass’ characterization of the final settlement as materially better than the one Kelley and Semmel had negotiated.

In other action taken at yesterday’s conference, the justices declined to review a ruling that allows Los Angeles attorney Sanford Jossen to represent the plaintiffs in a class action against Los Angeles County. The complaint charges that MacLaren Children’s Center employees routinely used force on children, injured them, and caused them to be falsely arrested by claiming they instigated the violence.

None of the justices voted to grant review in Jazzmon R. v. County of Los Angeles, B153854.

Los Angeles Superior Court Judge Morris B. Jones had barred Jossen from handling the case, saying he had a conflict because he had been a part-time referee hearing juvenile dependency and delinquency cases and had attended meetings at which MacLaren conditions were discussed.

The Court of Appeal’s Div. Three, however, in an unpublished opinion by Justice Patti S. Kitching, said the county failed to prove that any of the specific issues raised by the lawsuit were discussed at any confidential meeting Jossen had attended or raised in any of the cases he had heard as a referee.