For the 12th consecutive year, David Kupetz...
As part of an ongoing series distributed by the California State Bar’s Insolvency Law Committee (ILC), Asa S. Hami, Co-Chair of the ILC, has co-authored several profiles of bankruptcy judges across California along with other ILC members. Below is a quick guide to the judges’ backgrounds and judicial styles.
Who: Judge Neil Bason
Where: Central District of California, Los Angeles division
Background: Judge Bason grew up in Washington, D.C., and spent a year during college living in London. He enjoys studying history, and particularly about some of the men and women who had the greatest influences on the development of this nation.
Prior to Judge Bason’s appointment, he was special counsel at Duane Morris LLP and at Howard Rice Nemerovski Canady Falk & Rabkin, P.C., and served as law clerk to the Honorable Dennis Montali, United States Bankruptcy Judge in the Northern District of California and Chief Judge of the Bankruptcy Appellate Panel of the Ninth Circuit.
Judicial style: The Judge tries to give detailed tentative rulings prior to oral arguments, and expects counsel to address the relevant issues he identified. He does not try to hide the ball on the issues that he wants counsel to address. Although he likes to engage attorneys at oral argument, and does so more than the average Bankruptcy Judge, sometimes he feels compelled to hold back and let the attorneys raise the issues that they believe are important. Despite his active discussion with counsel, he fairly often refrains from raising additional issues that he has discussed with his law clerks because no party has raised them.
As a result of his experience in private practice, the Judge tries to move cases along in a timely manner. He frowns on needless procedural delays and has recently cracked down on some attorneys who consistently file late or frivolous pleadings. If an issue needs time to develop, then he will let that happen, but he makes every effort not to allow a case to linger needlessly.
Judge Bason understands life as a practitioner, including the importance of fee applications, and tries to remember that he does not see what transpires outside of the courtroom. He observed that what he sees as a judge may not be the whole picture. “The end result may look simple, but may not be, and I try to be respectful of that.” He comments that “someone can be a complete jerk during discovery and then act differently before the judge.”
He also understands that “reputation is everything.” It is especially critical in a small professional community like the Bankruptcy Bar. As a result, unlike among general litigators, one finds that in the Bankruptcy Bar there is generally more civility and a need to choose your battles. The Judge notes that an attorney who is not honest with the Court or who makes clearly frivolous arguments, risks having his pleadings read with extra scrutiny by judges who no longer trust that attorney’s factual or legal representations. He is quick to clarify, though, that in his experience both on and off the bench judges go out of their way to avoid bias in reviewing pleadings.
Who: Judge Martin R. Barash
Where: Central District of California, Woodland Hills division
Background: Judge Barash received his undergraduate degree at Princeton University, and law degree at the UCLA School of Law. Woodland Hills is his hometown, and he felt as though he had won the lottery when he was assigned to serve in the Woodland Hills branch of the Central District of California.
Following law school, Judge Barash worked at Stutman, Treister & Glatt P.C. and Klee, Tuchin, Bogdanoff & Stern, LLP. He also taught for a year at California State University Northridge.
Judicial style: Although the judge knows and has worked with many Los Angeles bankruptcy attorneys, not many of them have appeared before him yet. For attorneys who do, he focuses on the facts and the law and tries not to be influenced by what he knows about their personalities and styles. Judge Barash tries to keep biases in mind, commenting that “it is the unexamined bias that is dangerous.”
Judge Barash does not always issue tentative rulings in advance of hearings, and he sometimes states the tentative only after taking the bench. He posts a tentative when the issues are clear or when the answer has crystalized in his mind before the hearing. Judge Barash likes having a dialogue with attorneys in his courtroom. Although he often sticks to his tentative rulings, he sees oral argument as a valuable part of the process, and has been swayed by oral arguments on occasion. Such courtroom dialogue often tests the judge’s analysis of the issues, often confirming his pre-hearing analysis.
One procedure where Judge Barash may diverge from the majority of Central District bankruptcy judges is the use of direct testimony by declaration, as opposed to live testimony. He notes that “the default rule is direct testimony by declaration, but I have seen in my practice the value of live testimony. Witness credibility is easier to assess in person.” The judge comments that “declarations streamline what we do but there are also virtues to live testimony.”
On settlement, the judge reflects that “the fastest way to settlement discussions is to set a trial date. Part of my job is to encourage settlement.”
Judge Barash is cognizant of the costs associated with the bankruptcy process, and the barriers these costs can pose to gaining access to justice. It is clear that the judge views his role as part of a larger landscape of improving government through dedicated service. “People these days don’t feel like government listens to them,” he says. “I feel like the one thing I can do is listen to people with respect and have them know that they’ve been heard. The strength of institutions is directly related to the esteem in which people hold them.” He concludes by stating, “this is the world’s greatest job. I can really make a difference one person at a time. It’s an incredible gift, privilege and honor.”
Who: Judge Meredith A. Jury
Where: Central District of California, City of Riverside division
Background: Judge Jury received her undergraduate degree in English, with minors in History and Journalism, from the University of Colorado. After experimenting with teaching, she obtained a law degree from UCLA in 1976. Following law school, she accepted a job as the first female associate at Best, Best & Krieger, LLP, a Riverside-based firm, where she became a well-respected litigator handling complex litigation cases. She subsequently became the firm’s first female partner and happily practiced at the firm for over twenty years.
Judicial style: In addition to serving as a Ninth Circuit judge, Judge Jury also serves as the Chief Judge of the Ninth Circuit Bankruptcy Appellate Panel (BAP). As she describes it, “my day job is to write novels, and my night job is to review novels….The standard of review is everything on appeal. I didn’t think of that as a trial judge.”
For the BAP, Judge Jury usually reads the bankruptcy court ruling first and moves backward from there. She reviews the record on appeal before she reviews the parties’ briefs. “We get the bench memos one week before oral arguments and independently review them before the oral arguments. The judges on the panel discuss the cases at dinner the night before. We like consensus, and feel better about a 3-0 decision. When there’s a dissent, it’s an intellectual exercise and usually a close call, and we want the Ninth Circuit to review the issue. It’s the same thing with a concurrence. It’s a way to get a position in front of the Ninth Circuit.” After the BAP decides the issue, if there is a further appeal, Judge Jury comments, “I have an intellectual curiosity as to what the Ninth Circuit will do, but it’s out of my hands.”
Although the judge believes that the BAP’s decisions are important, she agrees that “some bankruptcy judges do not believe they are bound by the BAP’s decisions. I don’t feel bound by BAP opinions. The BAP can’t be binding precedent because District Court decisions aren’t binding precedent. You can’t have one appellate court as precedent and not the other.” However, the judge also notes that most bankruptcy judges follow BAP opinions. In fact, she states that, “95% of the time I follow the BAP and cite the BAP. Most bankruptcy judges do.”
Judge Jury is well known for presiding over the City of San Bernardino bankruptcy case. She reflects that, “Chapter 9 is expensive and it’s really a last resort. There is not really much appellate law on Chapter 9 cases. It’s mostly bankruptcy court judges opining.” Judge Jury is pleased with the progress in the San Bernardino case, recognizing that this case could not go more quickly.
She plans to retire within the next two years, after the San Bernardino bankruptcy case concludes and she has completed her term on the BAP. Prior to being appointed to the BAP, Judge Jury was on the Riverside Mayor’s Commission on Aging. In retirement, she plans to volunteer to help seniors, focusing on senior financial abuse issues. “I care about the senior population and want to use my skills to help.” Judge Jury does not see herself ever slowing down, even in retirement. “I like to keep busy. I like challenges.”
Who: Judge Thomas B. Donovan
Where: Central District of California
Background: Judge Donovan grew up in San Jose, California, playing competitive golf throughout school and even considering a professional career in the sport. He spent two years at San Jose State College and transferred to the University of California at Berkeley, where he received his BA degree in 1957. For the next two years, he served in the U.S. Army Security Agency, and played golf for the Army’s team. He then chose to enroll in law school back in California, ending his path toward a career in golf.
Judge Donovan attended law school at Boalt Hall at the University of California, Berkeley, and practiced at Dinkelspiel and Dinkelspiel until he and four of his friends left to create the law firm of Dinkelspiel, Donovan and Reder. During a sabbatical, his experience volunteering as a settlement officer for small claims at the Oakland-Piedmont Municipal Court helped him decide that he wanted to serve as a bankruptcy judge.
Judicial style: The judge’s management style involves “a lot of collaboration with the law clerks and externs. We talk a lot about the tough issues.” Judge Donovan’s ultimate test on each decision is whether it is “fair, just and correct. I don’t want to impact people unfairly. I want to do right by everyone.” The judge enjoys being a trial judge, and does not spend time worrying about how issues might come out on appeal.
Judge Donovan has presided over numerous high-profile cases, including the important landmark issue of whether a same-sex married couple could jointly file a chapter 13 petition. The case was originally Judge Ahart’s case, but became Judge Donovan’s case when Judge Ahart moved to the Woodland Hills courthouse. The Office of the United States Trustee filed a motion to dismiss the case on the grounds that the debtors did not have the right to file a joint petition based on the Defense of Marriage Act (DOMA). After thoroughly reviewing related cases and considering the matter, Judge Donovan concluded that the married debtors had a constitutional right to file a joint petition, and that dismissing the petition based on DOMA would violate the debtors’ due process and equal protection rights. The judge circulated his final draft decision to his Central District colleagues and was surprised that 19 of them voluntarily joined him in signing the decision supporting the right of the debtors to file a joint petition. Following a short-lived appeal that was quickly withdrawn, the Department of Justice announced that it would no longer defend DOMA.
The judge’s current term on the bench expires in March 2022, but he is retiring this coming March 2017. Despite his and Judge Richard M. Neiter’s upcoming retirement, the judge notes that the Ninth Circuit has not announced any intent to appoint new judges to fill the two empty seats. “There are not enough cases to warrant a new appointment. In my 22 years on the bench, it’s never been so slow.” The judge reflects that “it’s really been a privilege to serve as a judge. I feel really lucky that the powers-that-be gave me the opportunity. It has been challenging, fun and a serious responsibility.”
In a move that may surprise bankruptcy practitioners, in retirement, Judge Donovan plans to study astrophysics; in particular, what we know about the universe and recent developments. “I’d like to befriend an astrophysics professor at Cal Tech and follow them and learn”. Although Judge Donovan may still hear some cases post-retirement, it seems more likely that he will delve into other issues of interest with the same level of attention that he has given to the law as an attorney and judge for fifty-five years.
Who: Judge Maureen Tighe
Where: Central District of California
Background: Judge Tighe was appointed to the bench in November 2003. Prior to her appointment, she was the United States Trustee for the Central District of California between 1998 and 2003, the U.S. Trustee for the Districts of Southern California, Hawaii, Guam, and the Northern Mariana Islands between 2002-2003, and was an Assistant United States Attorney between 1988 and 1998. While an Assistant United States Attorney, Judge Tighe served as the Deputy Chief of the Major Frauds Section and Chairperson of the Bankruptcy Fraud Taskforce.
Judicial style: Judge Tighe understands and respects the roles that party representatives and attorneys have in the process and how that bears on the positions and actions they take in any given case. She notes, for example, that “the trustee has fiduciary responsibilities and sometimes can’t settle even if the trustee wants to,” and that attorneys must zealously advocate for their client (a trait the Judge “feels strongly about”).
The judge does not take reputation into account in issuing a ruling. She admits, however, that reputation could come into play when evaluating whether an attorney will be able to back up what they are proffering and the representations they are making. “If the attorney has proven credibility, I usually give them a chance to show it and come through.” She notes that “If you are upfront with problems, that helps.” Where an attorney has consistently made statements and failed to support them, she naturally is less inclined to accept their representations at face value.
After a few years on the bench, Judge Tighe realized that the greatest challenge the court faces relate to pro se litigants and inexperienced or untrained attorneys, including junior solo practitioners without mentors, who come to court without understanding the relief they need or should be seeking. For the past 13 years, the Judge has worked to assist pro se litigants, with a particular focus on combatting consumer bankruptcy fraud, such as the malfeasance of “petition preparers” or other individuals who claim to help pro se litigants, then charge substantial sums for claimed services, but provide little to no actual value.
Judge Tighe believes that tentative rulings are helpful to the process, and is gratified that her tentative rulings have changed the way that attorneys prepare their briefs. She believes strongly in meaningful oral argument and encourages attorneys to be zealous advocates, even if the tentative ruling is not in their favor. If attorneys believe that the Judge overlooked an important fact, or did not address relevant authority, it should be brought to the Court’s attention. The judge cautions that sometimes it is best to know when not to argue – she sees attorneys making arguments when they’ve already won, which “is risky.” But she is mindful that sometimes argument is necessary because the client is in the courtroom and “you have to keep up client relations.” Judge Tighe recognizes that clients sometimes need to see an attorney advocating on their behalf, even if they have an uphill battle.
During a recent speech accepting the Co-Presidents Award from the LGBT Bar Association of Los Angeles, Judge Tighe encouraged attorneys to be “part of something larger than themselves.” The issues involving pro se litigants are issues that involve not only the individuals, but also the court system as a whole. Those attorneys interested in volunteering to assist pro se litigants can find out more on the court’s website: http://www.cacb.uscourts.gov/pro-bono-opportunities.
Who: Judge Sheri Bluebond
Where: Central District of California
Background: Judge Bluebond was appointed to the United States Bankruptcy Court, Central District of California, on February 1, 2001. She was reappointed for a second 14-year term in December 2014 (effective February 2015), and became the Chief Judge on January 1, 2015, a position she currently occupies.
Judicial style: Judge Bluebond believes that contact between the bench and the bar is important and tries to make her interactions with the bankruptcy bar as engaging as possible. She regularly appears at Los Angeles Bankruptcy Forum presentations, providing updates and analysis regarding subjects of interest and new case law.
Practitioners also look forward to the “Bankruptcy Gameshow” programs that Judge Bluebond has hosted in recent years at the California Bankruptcy Forum’s Annual Insolvency Conference. The gameshows are fun and interactive and feature a panel of Central District bankruptcy judges who discuss bankruptcy-related opinions from across the Ninth Circuit. The humor-laced discussions between the judges are always presented to a “sell-out” crowd. Judge Bluebond comments that the gameshows “liven up the programs” and “give something entertaining” to bankruptcy practitioners.
Judge Bluebond relies upon and works with her law clerks to fully vet the issues before her. She drafts tentative rulings herself, finding that not only does the process of drafting tentative rulings help her decide how to rule, but the tentative rulings themselves help her manage her docket. The tentative rulings often cut to the heart of the issues presented and include pointed questions to address during oral arguments. The judge reviews the tentative rulings from the bench during hearings to help her recall her conclusions and the underlying analysis. However, Judge Bluebond notes that her tentative rulings will not always be the final ruling – while she estimates that more than one-half of the time her tentative will become a final ruling, she can be persuaded to change her tentative ruling. The final ruling is not usually 180 degrees different from the tentative unless she determines that she missed something in the tentative ruling. In such cases, Judge Bluebond may be swayed by oral argument. Counsel should not be dissuaded from advocating their position simply because the tentative ruling is not in their favor. And regarding oral argument, Judge Bluebond advises that, if she interrupts, it is usually because she desires to immediately address an issue so that it does not get overlooked later.
Judge Bluebond expects that lawyers will maintain a certain level of civility, both in pleadings and in oral argument. She does not like briefs that include significant amounts of bold, “all caps,” or underlined text because it reads as “yelling.” In oral argument, the judge wants to see attorneys treating their opposing counsel, the Court, chambers, and witnesses with respect. She also recommends that, for trial binders and exhibits at trial, attorneys pick one system of identifying exhibits in the pre-trial order and stick with that same system through trial even if the exhibit numbers are not consecutive in declarations. Keeping the numbering consistent avoids confusion and streamlines the identification and admission of evidence at trial.