Judge Takes Over LAPD Bias Suit, Delays Accord

Exercising the power of his office, a federal judge Tuesday took control of a lawsuit alleging sexual harassment and discrimination by the Los Angeles Police Department and refused to sign an agreement that would have imposed hiring and recruitment goals for women and minorities.

“At this juncture, I am not going to execute the consent decree,” U.S. District Judge William D. Keller said.

That move at least temporarily shelves an agreement that city officials and lawyers for nearly 100 plaintiffs have negotiated over the last two years.

Keller supervised the case for most of that time, but it was transferred to a magistrate judge last month. Keller said Tuesday that he felt the proposed agreement growing out of the lawsuit was too sensitive and potentially far-reaching to be overseen by a magistrate judge.

An earlier version of the proposal was opposed by Mayor Richard Riordan and ran into considerable controversy when it was forwarded to the City Council for approval last week. A sharply divided council disagreed about some aspects of the proposal, but unanimously backed a compromise that would create ambitious hiring goals for women and Asian Americans, and would extend existing goals for Latinos and African Americans. That deal--the one now pending before the federal court--was struck as voters were approving Proposition 209, a measure that bars most state and local affirmative action programs.

Supporters of the decree--which resolves part of a lawsuit known as Tipton-Whittingham vs. City of Los Angeles--assumed that council passage effectively sealed the matter and that the predicted approval by a federal magistrate judge would take the issue out of the reach of Proposition 209. But Keller’s move raises significant questions about whether the deal will survive.

Keller did not say Tuesday that he was opposed to the proposed agreement, but he told lawyers for both sides that he wanted them to explain its legal and constitutional ramifications before he would back it. At least for now, Keller said, he is not prepared to sign off on the deal.

Keller’s assertion of control over the case takes it away from a magistrate judge agreed to by both sides and puts the fate of the proposed agreement in the hands of one of the local judiciary’s most controversial and conservative figures.

Keller served as U.S. attorney in Los Angeles under President Richard Nixon and was appointed to the federal bench in 1984 by President Ronald Reagan. That background has helped establish his reputation as a conservative jurist. Keller’s sometimes brusque treatment of lawyers also has made him a focal point for controversy at the federal courthouse.

He was publicly vilified in 1993 by Stephen Yagman, a civil rights lawyer who has built a career out of condemning police abuse, particularly by LAPD officers. Yagman accused Keller of being “one of the worst judges in the United States.” Although Keller never responded publicly to the charges, Yagman was suspended by a panel of jurists--a punishment that was overturned on appeal--and ultimately apologized for his remarks.

“Keller’s basically regarded as a wild, crazy man,” said Century City defense lawyer Harland W. Braun. “He’s very conservative. He’s an activist. He wants to impose his views. . . . He’s regarded as the worst judge down there.”

Other lawyers described Keller in far more favorable terms.

“He’s independent, he’s strong-willed,” said Skip Miller, a lawyer who frequently represents the city of Los Angeles. “He takes a strong interest in his cases. That sounds like what he’s doing here.”

On Tuesday, lawyers for the ACLU, the NAACP and other organizations appeared stunned by Keller’s action. After huddling for several minutes, they implored the judge to let them research Keller’s decision and return to court on some later day to discuss it.

At first, the judge refused that request, instead telling the lawyers that they could go to the federal courthouse’s law library and return with their research before the end of the day.

When lawyer Barry Litt said the issues were complicated and would take more than a few hours to resolve, the judge snapped back: “Complicated, Mr. Litt? How is it complicated? . . . It couldn’t be more simple.”

But then Keller relented, granting the plaintiffs until Friday to submit papers to him. Robert Kramer, representing the Los Angeles city attorney’s office, joined in the request for an extension, but otherwise did not comment on the case or the proposed decree.

Bolstering his authority to retake control of the case, Keller referred the lawyers to a 1984 decision by the U.S. 9th Circuit Court of Appeals. In that case, Pacemaker vs. Instromedix, the appellate panel ruled that District Court judges could invalidate a case referral to a magistrate when they could show “good cause” for such an action.

“Good cause” was not defined, but the ruling cited several examples that would meet that standard. They were cases that affect a political branch of the government, that raise substantial constitutional questions, that affect rights of people not present before the court, or that raise such sensitive questions that a District Court judge “is required to ensure the appearance and the reality of independence and impartiality in the decision.”

In addition, that ruling notes that District Court judges have the right to reassert their jurisdiction over specific cases.

The language defining “good cause” for District Court judges asserting their authority, however, refers to cases that are sent to magistrate judges by a District Court judge. Since 1984, magistrate judges have acquired new powers--part of a steady accumulation of authority by those judges that began in 1968. As a result, the changing law and ambiguities particular to this case raise questions about whether the ruling cited by Keller would apply to the Tipton-Whittingham lawsuit.

In the Tipton-Whittingham case, lawyers for both sides agreed last month that the case should shift to Magistrate Judge Rosalyn Chapman for all future hearings, including a trial or approval of a settlement. Although the lawyers notified Keller of that transfer Oct. 15, Keller said Tuesday that he gets about 100 documents a day submitted to him, and he only became aware that the discrimination lawsuit had shifted when he read about it recently in a legal newspaper.

Under federal law, the lawyers appear to have the right to shift the case to a magistrate judge if they can agree on one.

“Upon the consent of the parties,” the law states, “a full-time U.S. magistrate [judge] . . . may conduct any and all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the court or courts he serves.”

But that language suggests that a magistrate judge may preside over all aspects of a civil lawsuit only with the parties’ consent--which was granted in this case--and the district judge’s approval--which apparently was not. Those wrinkles create an unusual situation that legal experts said is without direct precedent.

One veteran federal judge who works outside Los Angeles said he was not aware of any case on precisely the point raised by Tuesday’s events.

However, the judge added that he was “not shocked” to hear that Keller took the case back.

“When a case is assigned to a judge, it always belongs to the district judge,” said the judge, who asked not to be identified. “I would have thought the judge has inherent authority to retain that case.”

USC law professor Erwin Chemerinsky agreed that Keller appears to have the power to do what he did, but the professor questioned the wisdom of the judge’s action.

“On policy grounds, if both sides are pleased with the magistrate judge’s actions, there’s no reason for the federal district judge to take the case away,” Chemerinsky said. “But as a matter of legal authority all of the magistrates’ power is supervised by the federal district court.”

With the status of the proposed consent decree suddenly in limbo, city officials and Police Department leaders reacted cautiously to news of Keller’s action. City Councilwoman Jackie Goldberg, who led council support for the agreement, was unavailable for comment, and lawyers for the plaintiffs declined to discuss it outside court.

Gary Mendoza, the city’s deputy mayor for economic development, said the mayor’s office has long argued that the process that resulted in partial approval of the consent decree was too hasty.

“Judge Keller may be as concerned as we have been about this rush to judgment in this consent decree,” Mendoza said.

Police Commission President Raymond C. Fisher, who oversees the civilian panel that sets LAPD policy, said the department would continue its efforts to combat discrimination and harassment, with or without the proposed decree. As for the LAPD’s hiring practices, some of which have been clouded by the passage of Proposition 209, Fisher said: “We’re going to continue to be as proactive as we can.”