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WITH RECALL LOOMING, IT’S A RUSH TO PUT ROBES ON A gubernatorial nod is only the first step for the governor’s recent slate of judicial appointments. They also have to be sworn in, and there’s a rush on that as well. The governor’s office is telling candidates to hurry up about getting on the bench. Doing so avoids a problem that led to perhaps the most important case in the annals of American law: Marbury v. Madison. The case is known, of course, for establishing the principle of judicial review. But it had to do with a change in power, and a politicized judicial appointment that was made on time — no one disputed that — but hadn’t been officially commissioned. William Marbury lost his midnight appointment, in part because Chief Justice John Marshall knew Thomas Jefferson’s new administration wouldn’t honor an order to deliver the commission. By ruling that a law passed by Congress was unconstitutional, the decision laid down the bedrock of the nation’s judicial system. Davis appointees will want to avoid Marbury’s predicament. No governor of California has ever been recalled, and few are clear on the nuts and bolts of a changeover in power. First, Secretary of State Kevin Shelley will have to certify the election, which could come anywhere from Election Day to 39 days later, according to Shelley’s office. But there is nothing in state law about a transition period — and state lawyers are researching past local recalls to get an idea about what to do. Which raises the possibility of, say, Arnold Schwarzenegger pounding on the governor’s mansion with Davis hunkered down inside. Or worse: hunkered down with lawyers. “Sometimes it does go to litigation,” said Shelley spokeswoman Terri Carbaugh. — Jason Hoppin BROWN OUT Former San Francisco Public Defender Jeff Brown has wanted a judgeship for a long time, but he won’t be among those accepting eleventh-hour appointments from the potentially outgoing governor. “I took my name out of contention,” Brown said last week, explaining that his wife is seriously ill with cancer. “If you’re a judge you have no flexibility in time. You have to be there at 8:30.” Brown said he had already been cleared through the evaluation process when he told the governor’s office to withdraw his name. Brown was the city’s elected public defender for more than 20 years. He left in 2001 when Gov. Gray Davis appointed him to the California Public Utilities Commission amid the energy crisis. – Pam Smith THEY GOT THE T-SHIRT The supervisor of the state attorney general’s government law section decided her crew needed some gratitude — and a little stress relief — after working so hard to defend numerous challenges to the Oct. 7 election. So civil division chief Andrea Hoch called a meeting of the 30 lawyers, paralegals and others who have been putting in late nights on the recall and presented them with T-shirts commemorating their efforts. The front of the shirt reads “Bill Lockyer Presents Government Law’s Recall.a.Palooza 2003.” On the back, 14 of the 20 or so cases challenging the election are listed on the back, like concert dates. Hoch would have listed all the litigation but cases were filed after she ordered the shirts. “We were laughing at it afterward because the litigation kept coming,” said AG spokeswoman Hallye Jordan. “We were saying she’s going to have to provide everybody with a complete wardrobe.” The shirt design also references Hoch and other supervisors. On the front is “in hoch signum vinces,” a play on the Latin “in hoc signum vinces” or “in this sign you conquer.” And the back includes “work till the sun rises on the mauro,” a reference to AG lawyer Louis Mauro, and “riddle the opposition with briefs of brilliance,” a play off the last name of Secretary of State General Counsel Randy Riddle. Lockyer also wrote thank-you notes to each of the deputies who worked on the cases. – Jeff Chorney LOSER ON LINE TWO First District Court of Appeal Justice Linda Gemello couldn’t believe her ears during oral arguments on Thursday. “You’re telling us,” she said to a lawyer who was appearing telephonically, “that a 61-year-old man accosting an 8-year-old girl while she slept is a mitigating factor?” “And for four years?” Justice Mark Simons chimed in. Yep, that’s what Redway lawyer Richard Moller argued. While his client, Larry Wilford Dixon — sentenced to eight years in prison for lewd and lascivious acts with a child — occasionally masturbated while fondling his girlfriend’s daughter from age 8 to 12, Moller said, he only did so while she slept and he stopped immediately when he thought she was awake. That was better than threatening the girl for sex, he said. “Compared with any other child molestation that I’m aware of, it seems like he did not try to hurt her,” Moller added. Gemello still seemed stunned. “You say it’s better because the child was asleep?” Sure, Moller argued through the speaker phone. “As far as he knew she wasn’t aware of his sexual interest in her.” It was probably better for Moller that he couldn’t see the judges’ slightly appalled expressions. But he could still hear. As San Francisco Deputy Attorney General Margo Yu approached the podium to argue for the state, Presiding Justice Barbara Jones stopped her and asked: “Do you have any arguments? Or do you want to submit on the briefs? We have no questions.” The case is People v. Dixon, A099844. — Mike McKee A RIDE WITHOUT END The Riders trial didn’t end last week, though a lot of people thought — or hoped — it would. There were signs an announcement could be near. Just one week earlier, the jurors had implored Judge Leopoldo Dorado to send them home because they were deadlocked on most of the 35 charges against three fired Oakland cops. Since the jury doesn’t meet on Friday, some carefully planned for a Thursday verdict. Print and radio journalists faithfully camped outside Dorado’s courtroom for hours. David Hollister, the original prosecutor who has since left for a job in Plumas County, was seen wandering the halls. The jury even ordered in for lunch, fueling speculation that the panel was wrapping up a grueling final day of talks. But at 4 p.m. the jury presiding over the longest criminal trial in Alameda County history went home for the weekend. Today, the jury will enter its 59th day of deliberations. — Jahna Berry

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