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SILENCING GRAND JURORS A PRIOR RESTRAINT, MERCURY NEWS CHARGES The San Jose Mercury News, frustrated that grand jury witnesses are being instructed not to talk to reporters, has sued the district attorney and the grand jury. DA George Kennedy convened a grand jury last week, and its target appears to be Santa Clara Superior Court Judge William Danser. The judge also is under investigation by the Commission on Judicial Performance for his handling of a DUI case and for attempting to order the dismissal of his parking tickets. All week, reporters have been camping outside the grand jury courtroom, asking witnesses about their testimony. But Assistant DA William Larsen and members of the grand jury are admonishing witnesses not to talk, said Mercury News attorney Edward Davis Jr. “At least one witness has been told they would be thrown in jail if they talk to the media about their grand jury testimony,” said Davis, a partner with Gray Cary Ware & Freidenrich. Davis said DA Kennedy contends that the grand jury foreman, not DAs, is silencing witnesses. Either way, Davis said that amounts to a prior restraint on speech, pointing to a 1990 U.S. Supreme Court decision, Butterworth v. Smith, 494 U.S. 624, which struck down a Florida law outlawing witnesses from ever talking publicly about their grand jury testimony. The Mercury News on Monday filed for a writ of mandate in Santa Clara County Superior Court, naming Kennedy and the grand jury, although the grand jurors were not named individually. “We believe that what they are doing in admonishing these witnesses not to speak to the media is unlawful prior restraint,” Assistant Managing Editor Bert Robinson said. “Some members of the district attorney’s office have engaged in conduct outside of the court that has made it difficult for our reporters to gather news.” Assistant District Attorney Karyn Sinunu said the office would have no comment. “Since this issue obviously is going to be litigated, we think it will be smart to wait until the court rules.” – Shannon Lafferty LOCKYER BRIDE NAMED TO JUVY JUSTICE PANEL State Attorney General Bill Lockyer’s newlywed wife, Nadia Davis, recently accepted an appointment from Gov. Gray Davis to the California Advisory Committee on Juvenile Justice. The 32-year-old Davis, an Orange County attorney, was named last month along with other committee appointees. She is a former member of the Santa Ana Unified School District Board of Education and is active with various nonprofit organizations. Davis has followed in the footsteps of her late father, Latino lawyer and activist Wallace R. Davis. She used to work at Best Best & Krieger in Irvine, but left the firm several months ago. Now she works mostly on behalf of other attorneys out of her home in Santa Ana, according to the attorney general’s office. She will not receive a salary on the committee, which advises the California Council on Criminal Justice, the state’s criminal justice planning agency. Lockyer and Davis married earlier this year, and in June she gave birth to their son, Diego Wallace Lockyer. The AG keeps a home in Hayward and also spends quite a bit of time in Santa Ana, according to a spokesman. – Jeff Chorney MUNICIPAL ATTORNEYS LOSE PENSION APPEAL The First District Court of Appeal struck a second blow last week to lawyers who have sued San Francisco’s retirement board to increase their pensions. Backing an earlier decision by San Francisco Superior Court Judge David Garcia, the appellate court ruled that the city’s lawyers can’t count pay for unused vacation and sick time when calculating their pensions. The Municipal Attorney’s Association, which represents some 430 attorneys working for the city, sued the retirement board on behalf of current members and those who had retired since the suit was filed in 1999, said one of the association’s lawyers, Carroll, Burdick & McDonough partner Ronald Yank. The association’s case is one of three consolidated class actions that assert that cash payments for unused vacation and sick leave should be included when the city’s retirement board calculates “average final compensation,” one of three factors that determine the size of a retiree’s monthly pension. “This would be a significant jump in pension,” thousands of dollars over a lifetime, estimated Yank. But the additional benefits the plaintiffs are seeking could impair the integrity of the entire retirement system, if they cost more than $750 million as the retirement board estimates, Justice Barbara Jones wrote in Mason v. Retirement Board of the City and County of San Francisco, 03 C.D.O.S. 8289. “We are reluctant to adopt such an interpretation unless clearly required,” she wrote. Justices Mark Simons and Linda Gemello concurred. Another of the plaintiffs’ lawyers said he believes the courts have been too concerned with cost to rule in their favor. “We kind of feel like maybe we were victimized,” said Duane Reno, a partner with San Francisco’s Davis & Reno who represents about 50,000 city workers and retirees who are not attorneys. Reno vowed to petition to the California Supreme Court, while Yank said last week he wasn’t sure whether the association would. — Pam Smith

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