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Attorney General Bill Lockyer, one of three individuals who confirm appointees to the California Supreme Court, has expressed concerns about one justice believed to be in the running for a seat on that bench. The AG’s office confirmed Wednesday that Lockyer, speaking last month to members of the Alameda County Democratic Lawyers Club, expressed disagreement with certain decisions that Third District Court of Appeal Justice Vance Raye participated in. A couple of attorneys who attended the session, but requested anonymity, said the rulings involved racial discrimination and other ethnic minority issues. They also said Lockyer quoted extensively from one particular decision in which Sacramento’s Third District � with Raye concurring � granted Home Depot summary judgment despite three black employees’ complaints of pervasive discrimination, specifically recurrent racial slurs, comments and actions that they alleged were not addressed by the employer. “He did discuss some cases � and that Home Depot case sounds accurate,” AG spokesman Nathan Barankin said Wednesday. “There were things he looked at that gave him concern.” Barankin said neither he nor Lockyer could elaborate “beyond the Home Depot case.” Raye didn’t respond to a request for comment Wednesday. The names of Raye and Justice Carol Corrigan, of San Francisco’s First District, were submitted in August to the state’s Judicial Nominations Evaluation Commission by Gov. Arnold Schwarzenegger for the seat vacated June 30 by former Justice Janice Rogers Brown. Brown has joined the D.C. Circuit U.S. Court of Appeals. The two attorneys who attended Lockyer’s Sept. 16 speech didn’t recall any negative comments about Corrigan, but said the AG insinuated that neither she nor Raye would get the position. “He thought the governor was going to go back to the well,” one of the two said. “And he was asking us to submit names.” Three other attorneys confirmed that Lockyer sought suggestions for nominees. Barankin said, however, that the attendees had a “serious misunderstanding” about Lockyer’s comments, and insisted that he was only discussing Sacramento “gossip” that there would be other nominees. “We don’t know what’s in the governor’s mind,” Barankin said. Barankin also said Lockyer has not reached a decision about either Raye or Corrigan’s worthiness for the high court bench. “Neither one has had their name nominated,” he said. “They’ve been forwarded to JNE, but after someone is nominated, we do have a process for a thorough review for the AG.” Lockyer’s qualms about Raye’s rulings are significant because he sits on the Commission on Judicial Appointments, where he, Chief Justice Ronald George and the state’s senior appellate justice � currently Joan Dempsey Klein of Los Angeles’ Second District � have the power to confirm or reject Supreme Court nominees. While George is a Republican, Lockyer and Klein are Democrats. Lockyer’s concerns shouldn’t be taken lightly, court watchers say. “It says to me that the governor’s office might read the handwriting on the wall,” said Santa Clara University School of Law professor Gerald Uelmen, “and not want to appoint someone who will generate that kind of controversy, especially with Lockyer being on the commission that would determine if the appointment is approved.” “If he’s saying these things publicly,” he added, “Lord knows he’s saying them privately to the governor, and that might be enough to torpedo Raye.” Oakland appellate specialist Jon Eisenberg agreed. “Politicians don’t speak in public lightly, and this was in public,” the of counsel at Encino’s Horvitz & Levy said. “They are not going to say something at a meeting like this that they’d be unhappy to read later. So perhaps Lockyer’s sending a message here.” Steven Tidrick, an associate at Oakland’s Boies, Schiller & Flexner and president of the Alameda County Democratic Lawyers Club, didn’t respond to several voicemail and e-mail messages. But two attorneys who attended the Lockyer speech said, on condition of anonymity, that the AG seemed clearly bothered by Raye’s rulings. “He read us some of Vance’s opinions and indicated that he was going to go to the mat to oppose Vance,” one of the two said. This lawyer also said the AG had a “sheaf of papers” containing “downloaded cases complete with highlights.” The other attorney said that when Lockyer read from Hollingsworth v. Home Depot U.S.A., C042099, an unpublished Third District ruling issued on Jan. 31, there was “a deep pause in the room because it sounded inconsistent with protecting minority rights.” Hollingsworth was filed against Home Depot by three black employees who claimed they suffered a hostile work environment at two Sacramento area stores over several years. But in a ruling authored by Justice Fred Morrison, the Third District said the claims were either hearsay or so vague and stale that they wouldn’t be provable at trial. “The references to ‘boy’ are not necessarily racist in the context in which they were made, nor is the use of the term ‘ghetto,’” Morrison wrote. “[Hollingsworth] was never personally called a ‘nigger’ or ‘gorilla,’ and the objective sting of the joke about basketball and pickup trucks was not extreme.” The plaintiffs, he continued, showed nothing more than that they were “offended by some epithets and rude comments or purported jokes. That is not enough.” Raye and Justice Richard Sims concurred. While Barankin wouldn’t discuss any of Raye’s rulings, some lawyers pointed to other Third District decisions that might offend Lockyer � and in which Raye concurred � including decisions unfavorable toward affirmative action-based contract programs and one allowing a landlord to discriminate against unmarried couples based on religious beliefs. The latter case was reversed by the state Supreme Court, as was Miller v. Department of Corrections, 36 Cal.4th 446, in which the Third District had held that a warden’s affairs with subordinates didn’t constitute sexual discrimination toward other employees. “That’s the kind of thing Joan Dempsey Klein might look closely at,” Eisenberg said. Uelmen said the Home Depot and Miller cases have given him second thoughts about Raye. “There is a tendency in California to discount a judge’s concurrence in an opinion and lay principal responsibility on an authoring justice,” he said. “But it takes a majority to decide these cases.”

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