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The California Supreme Court on Wednesday agreed to hear cases that will determine whether all evidence gathered for mediation is protected from discovery in later cases, and to what extent school kids can be prosecuted for expressing themselves through disturbing poetry or art. The justices voted unanimously to hear the mediation case, while Justices Marvin Baxter and Ming Chin refrained from voting to hear the school case. In Rojas v. Superior Court (Coffin), S111585, the high court will review an Oct. 10 decision by Los Angeles’ Second District Court of Appeal that said the mediation privilege in two state Evidence Codes does not apply to factual material, such as raw data, witness statements and photographs, produced at mediations. Tenants of a Los Angeles apartment complex, who had suffered health problems allegedly because of faulty repairs that led to a microbe infestation, filed the original suit. To prove their case, they sought to obtain evidence that had been produced during mediation in a similar suit that the apartment complex owner, Julie Coffin, had previously filed against developers for construction defects. The owner had claimed that all evidence was protected by the mediation privilege, but the appeal court disagreed, saying the privilege was meant to protect only the “substance” of mediation, such as negotiations and communications that resolved the dispute. “To give the parties one more avenue where they could hide evidence and obstruct the fact-finding process of litigation would be, in our view, disastrous and would not foster resolution of disputes, but hinder them,” now-deceased Justice Mildred Lillie wrote. “Parties could simply agree to mediate, introduce all their evidence, and then refuse to settle, and claim privilege. What then?” Justice Dennis Perluss issued a spirited dissent, saying that the majority had “effectively eradicated any significance from the mediation privilege in California.” In his petition for review, Mark Herskovitz, who represents Deco Construction Co., a real party in interest, warned that letting the appeal court ruling stand could chill mediation. “Without an absolute and unqualified privilege in place at mediation,” the partner at Pasadena’s Friedenthal, Cox & Herskovitz wrote, “all parties to the mediatio+n process will be extremely reluctant to develop, for mediation, any evidence that may be potentially adverse, but of critical assistance in resolving cases.” ‘IN RE GEORGE T.’ In the school case, In re George T., S111780, the high court will review an Oct. 23 ruling by San Jose’s Sixth District Court of Appeal that upheld the juvenile hall commitment of a high school teen who had written poetry that authorities considered threatening. The boy, identified as George T., and also known as Julius, had shown two female classmates a poem he had written in which he described himself as “dark, destructive and dangerous.” The poem, called “Faces,” ended with a warning to parents that the author could be “the next kid to bring guns to kill students at school.” Authorities charged Julius with violating state Penal Code � 422, which punishes anyone who threatens someone in a way that causes the victim to seriously fear for his or her safety. A judge sentenced Julius to 100 days in juvenile hall, and the Sixth District affirmed. Civil rights activists say similar cases are popping up all over California, in light of school shootings in recent years. And they claim that the law tramples on youngsters’ free-speech and expression rights. Sixth District Justice Conrad Rushing issued a strong dissent in the George T. case, saying Julius was just a “lonely young man” trying to make new friends at a new school. The words in the poem, Rushing said, were “devoid of any evidence” that Julius intended to harm anyone. To support his argument, Rushing cited angst-filled poetry by major poets — including Sylvia Plath and Allen Ginsberg — that he said could be considered harmful under the prosecution’s arguments.

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