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When is a Judge Not a Judge?

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  • jail4judges
    J.A.I.L. News Journal ____________________________________________________ Los Angeles, California March 10, 2002
    Message 1 of 1 , Mar 11, 2002
       J.A.I.L. News Journal
      Los Angeles, California                                              March 10, 2002
      When is a Judge
      Not a Judge?

      Judge's dual role sparks dispute

      Trena Burger-Plavan has refused to quit a volunteer fire panel.

      By Ramon Coronado -- Bee Staff Writer
      Published 5:30 a.m. PST Thursday, March 7, 2002

      Sacramento Superior Court Judge Trena H. Burger-Plavan holds two public offices: her judicial seat and volunteer Yolo County fire commissioner.

      A month ago, her dual roles were found to violate the state constitution. In addition, legal experts say she is breaching judicial ethics.

      Yet, as of Wednesday, the judge retained both seats.

      Burger-Plavan's refusal to resign has drawn attention to the apparent confusion in the legal community over what constitutes judicial conflict.

      Some legal experts seem convinced she has clearly violated California law, yet only the Commission on Judicial Performance has authority to discipline judges for their conduct. And its members won't say whether a complaint has been filed against Burger-Plavan or what punishment, if any, would be enforced.

      The potential ramifications are huge. Those experts quoted for this story note she already has been disqualified from one case involving a firefighter and predict her dual roles will lead to lawsuits challenging nearly every decision she has made since being elected to the bench in November 2000.

      Reached in her fourth-floor courtroom, Burger-Plavan declined to discuss the issue. She invoked a state rule of judicial ethics, prohibiting judges from discussing pending cases.

      Gerald Uelman, a Santa Clara University law professor who is an expert on the California Constitution, said he is surprised that Burger-Plavan is refusing to relinquish one of her jobs.

      "To remain in this dual situation could put all her future judicial decisions in jeopardy," said Uelmen.

      The constitution is clear: A judge cannot hold another public office during his or her term, Uelmen said. *

      Retired Mendocino Superior Court Judge Galen Hathaway thinks the same.

      Hathaway was drawn into the issue after he was asked to review a special claim made by Sacramento defense attorney Dean Robert Johansson. The defense attorney accused Burger-Plavan of not being able to be fair to his client because of her role as a volunteer fire commissioner on the East Davis Fire Protection District.

      Johansson, who was assigned to Burger-Plavan's court for a preliminary hearing, represents Robert Wayne Lizarraga, a former firefighter charged with battery upon a firefighter.

      Lizarraga is well known in the firefighting community for speaking about firefighting issues at public meetings. He also is charged with arson in Placer County, the defense attorney said.

      "After it became clear that the case amounted to my guy vs. the firefighting community, she made it known that she was a commissioner," Johansson said.

      The defense attorney asked the judge to disqualify herself, but she refused, saying she could be fair.  ....

      Edward P. Freidberg, a prominent Sacramento personal injury attorney, believes Burger-Plavan is not really a judge.

      "Another way to read the law is that she was ineligible to be a judge in the first place. Her position is void. It is as if it never existed," said Freidberg, who has been a longtime critic of Burger-Plavan. .... [snipped]

      The Bee's Ramon Coronado can be reached at (916) 321-1191 or rcoronado@... .

      * The California Constitution sets forth in Article VI, Section 17, "A judge of a court of record ... is ineligible for public employment or public office.... Acceptance of the public office is a resignation from the office of judge."
      What we face here is a question of what happens to a judge who just simply refuses to leave the bench as required by the Constitution? Or, put another way, were they ever a judge in the first place, they being unqualified to be a judge prior to being appointed? And should all decisions of this so-called "judge" be reversed and/or overturned? Shall the taxpayers pick up the tab for the legal complications created by challenges to this "judge?" What is the status of our California Constitution on this? Is it the last word in authority, or is it to be ignored?
      Where is J.A.I.L when we need it?  J.A.I.L. is the ONLY answer!

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