Just Follow the Law: Making Courts Accessible

The Law Office of Asit Panwala successfully sued the Superior Court of Santa Clara County for a violation of the Americans with Disabilities Act.  The Superior Court has agreed to take measures so that it does not happen again in addition to paying monetary damages.

ADA

In March of 2016, the Superior Court denied a request for CART (Computer-Aided Real Time Transcription) services to a litigant who is hard-of-hearing.  His hearing aids do not help in a courtroom setting.  CART services allows one to read what is being said, just like captioning on TV. Instead, the client came to court and could not understand the arguments being made in his case or the questions from the Court. The Superior Court denied the accommodation because it was made three days in advance instead of five as required by a rule of court.  The Court denied the request minutes after receiving it, without making any real effort to find a CART provider.

In discovery, the Law Office of Asit Panwala learned that eleven other persons were denied CART services including five based on the timeliness of the request.

ADA No. 2

As a result of the public settlement, the Superior Court has promised to maintain a list of independent CART providers, undergo sensitivity training, highlight on their website that they will try to accommodate requests made less than five days before the hearing as well as pay a significant amount in damages.  See Panwala v. Santa Clara County Superior Court, case no. 5:16-cv-5914.

Asit Panwala hopes this resolution will remind the Courts that they have an obligation to be accessible to the public including those with disabilities.  He hopes that they will “just follow the law.

The greatest threat to our democracy is ignoring our Constitution

Rather than allow the voters to vote on a controversial zoning measure, the City of Morgan Hill  has now petitioned the California Supreme Court to hear their arguments to why the Constitution should be ignored.  The Sixth District Court of Appeal rebuked the City in an unanimous decision in City of Morgan Hill v. Bushey, et al. (2017) 12 Cal.App.5th 34, requiring the City to either repeal the controversial zoning ordinance or place it on the ballot for voter approval.

Constitution

The right to referendum is found in article 2, section 9 of the California Constitution, and the Sixth District found that voters could reject one zoning designation for another if they both equally conform to a general plan amendment.  River Park Hospitality, the out-of-town developer that owns the parcel at issue, would profit greatly if the zoning was changed also sought review in the California Supreme Court.  The Law Office of Asit Panwala in conjunction with the Law Office of J. Randall Toch filed an answer to their petitions on behalf of the Morgan Hill Hotel Coalition.  Answer to Petitions for Supreme Court Review  We expect that the Supreme Court will decide whether they will hear the case in next two months.

Panwala convinces the Court of Appeal to protect voters’ rights

Yesterday, the Sixth District Court of Appeal issued an unanimous decision affirming the right of voters to exercise the power of referendum. Asit Panwala, attorney for the Morgan Hill Hotel Coalition argued that the Court of Appeal needed to reverse the trial court’s decision preventing voters from rejecting one zoning designation when several others would equally conform to an amended general plan. Morgan Hill’s choice of zoning would have provided a financial windfall of two million dollars to out-of-town hotel developer. The City argued that the voters could not reject their choice of zoning.

The City had relied on DeBottari v. City of Norco, a Fourth Appellate Division case, to argue that the voters could not choose leave in place an inconsistent zoning because it is the same as “enacting” invalid zoning. Panwala argued that the logic of DeBottari was flawed and the Court of Appeal agreed. The City of Morgan Hill will now be ordered to repeal the zoning ordinance or place it on the ballot for voter approval. Panwala is ecstatic that the voters will ultimately have the final word as the Constitution requires.

vote

Decision attached. H043426

Panwala convinces the Court of Appeal to protect voters’ rights

Yesterday, the Sixth District Court of Appeal issued an unanimous decision affirming the right of voters to exercise the power of referendum.  Asit Panwala, attorney for the Morgan Hill Hotel Coalition argued that the Court of Appeal needed to reverse the trial court’s decision preventing voters from rejecting one zoning designation when several others would equally conform to an amended general plan.  Morgan Hill’s choose of zoning would have provided a financial windfall of two million dollars to out-of-town hotel developer.  The City argued that the voters could not reject their choice of zoning.

The City had relied on DeBottari v. City of Norco, a Fourth Appellate Division case, to argue that the voters could not choose leave in place an inconsistent zoning because it is the same as “enacting” invalid zoning.  Panwala argued that the logic of DeBottari was flawed and the Court of Appeal agreed. The City of Morgan Hill will now be ordered to repeal the zoning ordinance or place it on the ballot for voter approval.  Panwala is ecstatic that the voters will ultimately have the final word as the Constitution requires.

Voting Rights

The decision is attached.  H043426

 

 

Panwala argues for voters’ rights in front of the Sixth District Court of Appeal

Two years ago, more than 2500 voters signed a petition for referendum after the City of Morgan Hill rezoned land to provide a financial windfall to an out-of-town hotel developer. Instead of allowing the referendum to take place, the City of Morgan Hill successfully persuaded a trial court judge to remove the referendum measure from the ballot. Panwala had successfully obtained a stay of the trial court’s ruling from the Court of Appeal despite the fact that such writs are only successful less than five percent of the time.

Voters

Today in front of the Sixth District Court of Appeal,  Panwala argued on behalf the voters and asserted their Constitutional right to exercise the power of referendum had been violated by the City.  He argued that preventing voters from rejecting one specific zoning designation when others would equally conform general plan would render their right to referendum meaningless. He pointed out that the City could choose from eleven other commercial zoning options if the voters failed to approve of the City’s choice of zoning.

The City argued that the voters had to accept their choice of zoning because the status quo was inconsistent, and therefore invalid.

Panwala told the Court that after the trial court removed the measure, his father told him that he signed the petition, and asked, “Doesn’t that mean something?”  Panwala then suggested to the Court that it had the power to say that it did.

The Court is expected to issue a decision in the next ninety days.

The Law Office of Asit Panwala is committed to social justice including our right to participate as voters.

Dismissed….

Scrabble

My client violated a temporary restraining order between by contacting a common friend and asking if she and her ex-boyfriend could resolve their case without spending more on attorneys.  It was in the evening after the hearing, but before a new order had been served on her. Eventually, the client had a restraining order issued against her  and even had the Court order her to pay her ex-boyfriend’s legal fees (Note: I did not represent her then).

Despite this, the District Attorney’s Office still filed charges against her.  Talk about adding insult to injury.  Worse yet, she is a green card holder and any conviction may prevent her from becoming a citizen (very likely in post-Trump world).

I calmed her down and reminded her that no jury would want to convict her for such an innocuous message.  There were no threats nor insults and she had not contacted her ex since their case began.  I  communicated with the deputy district attorney, but they insisted on prosecuting.

Sometimes the only weapon you have on the defense is to call their bluff.  I asked for a trial date and objected when they wish to continue it.  I filed a thirteen page motion in limine and flatly told the district attorney that I don’t think they will prevail.  I pointed out for the first time that they had a notice issue because the new order was issued after my client texted the common friend.

Armed and ready for trial, I returned the next day.  Instead, they dismissed the case.  They blinked.  My client was overjoyed.  She could seek a new job and no longer worry about whether a potential conviction will force her to leave.

Note:  This is not a guarantee that I will be able to convince the District Attorney to dismiss charges against you.  Success in any case is relative to strength and weaknesses inherent in this case. 

Let the Voters Decide

vote

The Law Office of Asit Panwala filed a reply brief asking the Sixth District Appellate Division to overturn a trial court ruling that prevented voters from exercising their right to referendum.  In Morgan Hill, the City Council voted three to two to rezone industrial land to provide a windfall to an out-of-town developer, River Park Hospitality, so that they could build a hotel.  More than 2,500 voters rejected the ordinance by signing a petition asking that the City place the measure on the ballot for approval before it became effective.  The City initially ignored the referendum and tried to enact the zoning change despite of it.  The developer, looking to make a quick dollar, listed the property for sale for $2 million dollars more than he paid a year earlier.

However, the Law Office of Asit Panwala sued the City, and forced them to place the measure on the ballot.  The City then sued to remove it from the ballot preventing the voters from deciding the issue. Yes, really. They sued to remove the measure that they placed on the ballot.

The trial court ruled against the Coalition because the general plan had already been changed and held  that voters could not vote to keep inconsistent zoning. We argued that the voters should be allowed to reject one commercial zoning designation for another (one that does not allow for hotels).  There are eleven other commercial zoning options to choose from other than the one picked by the Council.

The Coalition obtained a stay from the Court of Appeal and the issue will now be decided by the Sixth District.  Briefs were just submitted to the Court.  Let the voters decide.  That’s all we want.

Why did I call back?

I received the phone message on my birthday.  Those who know me, know it is a national, rotating holiday for myself but the man sounded frantic and desperate for help.  That is how I first met Adesola.  I returned his call on my birthday while away on vacation.

Adesola is the father of a young boy, who provides for him by working for Instacart.  He had a tumultuous relationship with his child’s mother.  When the mother became exasperated with his son, Adesola took his son to Baltimore to live with his own mother.  The problem is that he did not have legal custody. The police soon arrested him for child abduction, and Adesola pled guilty to a felony with probation to get out of jail.

While on probation, his child’s mother would manipulate him.  If he did not do what she wanted, he would deny him to access to his child.  She demanded money and for Adesola to do errands.  One day, she went to the police station and complained that Adesola had threatened to hurt her via phone and harassed her by calling her 200 times.  Her call log showed three missed calls. Nevertheless, the probation department filed a motion to revoke Adesola’s probation.

I had learned that the mother of Adesola’s son had been arrested for DV and convicted of theft. I was ready for cross-examination and subpoenaed records to use at the hearing. Adesola was nervous, but when it came time for the hearing, the probation department folded.  They withdrew their motion to revoke before we even held a hearing, which is unheard of.  Meanwhile, Adesola now has joint custody. Adesola thanked me profusely for answering his phone call.

Pistorius sentenced to 6 years-Judicial compromise?

Judge Masipa reviewed Pistorius’s case and sentenced him to 6 years in prison. Given that the reviewing court reversed the lower court’s decision and found Pistorius guilty of murder, it is curious that the Court only sentenced him to 6 years.  Murderers are sentenced for a minimum term of 15 year in South Africa.  In her explanation, the Court stated that there was mitigation in the case; that Pistorius had reason to believe an intruder was in his house, that he was vulnerable on his stumps, and there was no evidence of domestic violence.  Her explanation sounds like the argument for the defense that this tragedy was purely an accident and that Pistorius did not harbor the malicious intent to kill Reeva Steenkamp.  The sentence is the equivalent of “splitting the baby” or some type of judicial compromise to sentence Pistorius to 6 years rather than 15 or letting him off completely. It probably leaves both sides unhappy, but I have heard many judges state that if neither side is happy with the result, then the outcome is fair. 3600