Inside "Westphal v. Wagner," Part 1: Judge Gandhi glowers at Nancy Padberg and crew!

Feb. 17: scene of settlement conference

     NOW that “Westphal v. Wagner” is history, I can report the interesting—and sometimes amazing—events that occurred in the course of this case.
     The lawsuit was filed way back in November of 2009. It was settled 17 months later, at the end of March, 2011. For today, I’ll describe a relatively recent episode—starting this January.

THE JANUARY RULING

     Late in January, 2011, we received a mixed ruling from Superior Court Judge Gary Klausner, a conservative, seventy-year-old Bush appointee and ex-Marine. (Back in the 90s, he drew attention when he set S&L kingpin John Keating's bail at $5 million. More recently, he has played the heavy in some high profile cases.)

Judge Klausner

     With such a judge, we expected to have trouble, and we were not disappointed.
     On the one hand, Klausner held that Chancellor Raghu Mathur’s notorious “Jesus” slideshow (in 2009) and Don Wagner’s obnoxious scholarship awards ceremony rant (in 2008) were indeed unconstitutional. Heck, the judge even issued an injunction against the district that required that it comply with its policy according to which prayers can’t be hostile and sectarian!
     Team Westphal viewed the latter as quite a bonus.
     On the other hand, Klausner held that the board’s non-sectarian invocations are not offered with a Constitutionally impermissible purpose, effect, or entanglement. —That is, the board's generic prayers are kosher, as it were.
     We didn’t think much of his reasoning to that conclusion.
     Naturally, we could appeal the latter decision. And we knew we had a good chance of prevailing in the 9th Circuit.

Judge Jay Gandhi

     But, in the meantime, the district indicated a willingness to pursue a settlement of the case (a settlement conference had already been in the works), and that process would be handled by Magistrate Judge Jay Gandhi (U.S. District Court for the Central District of California), formerly of Paul, Hastings, Janofsky & Walker in Orange County. (The thirty-nine-year-old Gandhi is somewhat special; he's quite young and he’s only the second Indian-American federal judge in the country’s history.)
     And so we prepared for the settlement conference, to occur at Judge Gandhi’s digs, way up in the U.S. District Court Building in downtown LA, right next to the famous LA Courthouse.
     Judge Gandhi chose the date of February 17th at 10:00 a.m., a Thursday. That was pretty inconvenient for most of us. Nevertheless, he made clear that all plaintiffs and defendants would be required to attend, and anyone who failed to attend would be sanctioned by the court!

THE FEB 17 SETTLEMENT CONFERENCE

John Vogt

     Our attorneys made every effort to get all of us to the session, but one among us, a former Saddleback student, now lived in the Bay Area, and she couldn’t afford the trip. So, on the 17th, six of us—all but one of our number—attended the conference, held in Judge Gandhi’s courtroom. We were accompanied by AUSCS legal director, Ayesha Kahn, and local attorney, Chris Murphy (of Mayer Brown).
     And the defendants? Well, defendants were represented by two attorneys (John Vogt and his partner) with the famously pricey firm Jones Day, which had defended former Sheriff Mike Carona at his corruption trial. (Carona's now in federal prison, natch.)
     But, in Judge Gandhi’s courtroom on the 17th, only ONE of the defendants was present: trustee Nancy Padberg.
     Uh-oh.
     When the judge entered, he saw what there was to see. He looked at Nancy's tiny crew. He glowered. He sat down. He said, “What is it about ‘you are required to attend the hearing’ that is unclear?" (Something like that.)
     He stared silently at Padberg and her two shiny attorneys. He was pissed. Seriously pissed.
     He lectured at us (well, mostly at Padberg and Co.). He threatened sanctions.
     This went on for a while.

Chris Murphy

     In the end, Gandhi decided to go ahead with the “conference,” though it would not include the usual initial session with everyone in the room. Nope. He separated the two sides. He left us—the plaintiffs—in his courtroom. He sent Padberg and Co. to another courtroom down the hall. For the rest of the day—this went on until maybe 7:00 or 8:00 p.m.—Judge Gandhi would spend two hours or so haranguing one side, and then he’d walk down the hall to the other courtroom and harangue the other side. It was a kind of shuttle diplomacy—er, shuttle hectory.
     “Be realistic!” “You must be kidding!” “You’re dreaming!” –Such were the remarks (more or less) that punctuated our time—and no doubt the other side’s time—with Judge Jay Gandhi.
     Gandhi was smart and extremely focused. And he was ruthless. He’d browbeat us. Sometimes, when one among us wouldn’t bend sufficiently to his urgings, he’d seem to be disgusted; he'd head for the door, declaring that his time was being wasted. “I’m calling this whole thing off,” he’d roar.
     That always worked. Somebody would cave, or somebody would promise to make the person who needed to cave cave. And then they’d cave.
     It was amazing.
     At the end of the day, we had a tentative settlement. I was pretty pleased with it, but some of us were not. Their grimness prevailed, at least in my Chrysler as we rolled home for Orange County on that long freeway ride. I don’t think anybody said a single word.

Ayesha Kahn

TROUBLE HERDING CATS

     But "Westphal v. Wagner" wasn’t over yet. Far from it! After all the Sturm und Drang we—i.e., those of us who bothered to show up—endured on the 17th, when the board met eleven days later—at its scheduled February 28 board meeting—guess what happened!
     They failed to ratify the agreement!
     D’oh!
     We were pissed. Judge Gandhi, too. This wouldn't have happened had defendants showed up for the settlement conference like they were supposed to.
     It was back to the drawing board.
     The next month would be yet another wild ride.

     (To be continued….)

Don Wagner's obnoxious Scholarship Award Ceremony comments