14 January 2013

Sacramento Superior Court Employee Misconduct: Family Court Whistleblower Alleges Systemic Code of Civil Procedure and Court Rule Violations by Court Administrators & Clerks

Sacramento Family Court Chiefs Julie Setzer and Colleen McDonagh Responsible for Serial State Law Violations, Whistleblower Charges

Color of Law: The Conspiracy to End Pro Per Appeals
A Sacramento Family Court News Exclusive Investigative Report. Part 1.
This story is part of an ongoing investigation and was updated in September, 2013

Judge Kevin R. Culhane – Hon. Kevin R Culhane – Judge Kevin Culhane – United States District Court Eastern District of California – Sacramento Federal Court – United States Courts - Judge William Shubb - Judge Edmund Brennan - Judge Garland Burrell Jr - Judge Carolyn Delaney - Judge Morrison England Jr - Judge Gregory Hollows - Judge John Mendez - Judge Kendall Newman - Judge Troy Nunley - Judge Allison Claire - Judge Dale Drozd - Judge Lawrence Karlton - Judge Kimberly Mueller – Office of the United States Attorneys Benjamin B. Wagner Eastern District of California,
Sacramento County Family Court Director of Operations Julie Setzer and Manager
Colleen McDonagh have directed court employees to disregard state laws
mandating entry of judgment procedure, charges a court whistleblower.
A Sacramento County Family Court whistleblower has leaked to Sacramento Family Court News court records indicating that countless family court cases are missing critical paperwork required by state law. 

After any family court hearing which results in a judgment regarding
 child custody or visitation, spousal support, or any other judgment subject to immediate appeal, California Rules of Court rule 5.134 requires court clerks to enter, file and serve a Notice of Entry of Judgment. State court rule 8.104(e) defines "judgment" as any appealable order. 

By law, the court clerk must use Judicial Council Form FL-190 to provide the notice of entry to all parties. The notice provides an important notification regarding the right to appeal, and the destruction of exhibits on file with the court. In addition, two other components of the FL-190 form eliminate ambiguity in the time frame for an appeal, according to the California Supreme Court

In a 2007 decision, the high court noted that the title of the mandatory form and the clerk's certificate of mailing at the bottom of the notice were drafted specifically to eliminate miscalculations and disputes related to appeal time frames. Click here and scroll down to the highlighted text to view the relevant sections of the 2007 Supreme Court case.  

For appealable judgments in law and motion proceedings, Sacramento Family Court Director of Operations Julie Setzer, Manager Colleen McDonagh and Supervising Courtroom Clerk Denise Richards have directed court employees to simply ignore the law, according to the source, who provided the information on the condition of anonymity because they could be subject to retaliation for the disclosure. 

To continue reading Part 1 of our series Color of Law, click Read more >> below. 

Omission of FL-190 Reduces Appeals by Family Court Parties Without Lawyers

"This has been going on for years and judges, attorneys, the family law facilitator, the court of appeal, everyone is in on this. One objective is to reduce or eliminate appeals by the indigent and self-represented," the source explained. "The FL-190 is the first notification they get that they even have appeal rights. Without the notice, most pro per parties are completely unaware that they can appeal child custody, visitation, support and many other rulings from OSC and motion hearings." 

The mandatory Judicial Council form contains a notification about the right to appeal a court order, and a warning that exhibits may be destroyed or disposed of after 60 days from the expiration of the appeal time.  
Judge Robert Hight – Judge Bunmi Awoniyi – Judge Steven Gevercer – Judge Tami Bogert – Judge James Mize – Vance Raye - Victoria Henley CJP - Judge Thadd Blizzard -Sacramento County Superior Court, Judicial Council Form FL-190 -Family Court: Sacramento Superior Court - Family and Children - Family Court Services - Sacramento Superior Court - Child Custody Recommending Counseling, Family Court Services, Confidential Mediation, and Evaluation - Family Court Self-Help Center: Sacramento Superior Court - Self-Help Center - Family Law Facilitator - Family Court Records: Sacramento Superior Court - Order a File and Records - Family Court Resource Referral Program: Sacramento Superior Court - Resource Referral Program - E-Correspondence (Family Law Self-Help Assistance) - Family Law Facilitator - Divorce / Legal Separation / Annulment: Sacramento Superior Court - Divorce / Legal Separation / Annulment - Family Law - Court Appearances: Sacramento Superior Court - Court Hearings and Orders - Child Custody / Visitation: Sacramento Superior Court - Child Custody / Visitation - Family Relations Courthouse: Sacramento Superior Court - William R. Ridgeway Family Relations Courthouse - Public Case Document Search - Sacramento Superior Court - Civil Motions and Hearings General: Sacramento Superior Court - Complex Case Calendar: Sacramento Superior Court - Gordon D. Schaber Sacramento County Courthouse: Sacramento Superior Court –
Indigent and self-represented Sacramento Family Court parties do not receive this notice about their right to appeal child custody/visitation, support and other orders.

California Supreme Court Confirms FL-190 Mandatory

In a 2007 decision, Alan v. American Honda Motor Co., the California Supreme Court emphasized the importance of the mandatory Judicial Council FL-190 form, and that the requirement is unique and specific to family law proceedings. According to the Supreme Court, one critical function of the form is to establish the time frame within which an appeal of law and motion orders can be filed. 
"The clerk is required to give notice only in designated family law matters (Code Civ. Proc., § 664.5, subd. (a); rule 5.134)...In those family law proceedings in which the clerk must always give notice, rule 5.134 requires the clerk to use a Judicial Council form (FL-190) specifically drafted to ensure compliance with rule 8.104(a)(1). Obviously, problems are more likely to occur when no approved form of notice is available...The Judicial Council form (FL-190) that clerks must use in family law proceedings...avoids ambiguity...by bearing the title, "Notice of Entry of Judgement," and by including at the bottom of its single page a form for the clerk's certificate of mailing." Click here to view Alan v. American Honda Motor Co. 
Sacramento Family Court clerks not only do not file and serve the FL-190 form as required by law, they permit Sacramento County Bar Association Family Law Section lawyers to file a counterfeit version of the form which omits both the appeal rights notification and the clerk's certificate of mailing.The fictitious form also is served by a private sector lawyer - not a neutral public court clerk as required by both the Code of Civil Procedure and the state court rules. 

Using in place of the state mandated form an unauthorized, self-serving form that omits appeal rights and other important notifications required by law also raises moral turpitude and other ethical implications against attorneys who engage in the deception. Click here for our complete report on the counterfeit form issue. 

Hon. Robert C. Hight – Hon. Bunmi O. Awoniyi – Hon. Steven M. Gevercer – Hon. Tami R. Bogert – Hon. James M. Mize – Vance Raye - CJP Victoria B. Henley – Hon. Thadd A. Blizzard -Federal Bureau of Investigation – public corruption – CONSPIRACY TO COMMIT WIRE FRAUD - Special Prosecutions Unit –  DEPRIVATION OF RIGHTS UNDER COLOR OF LAW - civil rights violations – Benjamin B. Wagner United States Attorney for the Eastern District of California – White Collar Crime Unit – DEPRIVATION OF RIGHT TO HONEST SERVICES - Special Prosecutions Unit – Criminal Division – John Vincent Chief – White-Collar Crime Unit – Robert Tice-Raskin Chief – CIVIL RIGHTS CONSPIRACY - Special Prosecutions Unit – Steven R. Lapham Chief – CONSPIRACY TO COMMIT THEFT CONCERNING PROGRAMS RECEIVING FEDERAL FUNDS 18 United States Code § 666(a)(1)(A) -  State of California Department of Justice – Office of the Attorney General – Kamala D. Harris Attorney General
The clerks certificate of mailing at the bottom of the FL-190 form contains information critical to filing a timely appeal.

Judge-Attorney Legal References Confirm FL-190 Procedure  

Using the family law legal references used by judges and attorneys, Sacramento Family Court News verified that the FL-190 must be served and filed by a court clerk for all appealable orders. To view the FL-190 procedure reference in California Practice Guide: Family Law, written by judges for judges and attorneys, and published by The Rutter Group, click here. To view a similar reference in the companion California Practice Guide: Civil Appeals and Writs, click here

In addition to the gold standard family law references, California Practice Guide: Family Law and Civil Appeals and Writs, the same procedure also is specified in Witkin California Procedure. Click here to view the Witkin instructions. 

3rd District Court of Appeal Verifies Appealable Orders Require FL-190

The Third District Court of Appeal in Sacramento publishes a Self-Help Manual [pdf] for self-represented litigants which confirms that, by law, appealable orders are the same as judgments, and therefore require service of the FL-190 form. Page 10 of the Self-Help Manual reads:
"Note that the same rules about an appeal from a judgment apply to an appeal from an appealable order, as the rules of court dealing with appeals define 'judgment' as including an order that may be appealed. (CRC 8.10(4).)" Click here to view this excerpt from the Self-Help Manual.   
The whistleblower pointed out that superior court and Court of Appeal judges, the family law facilitator and court employees are all paid by taxpayers to know and comply with the law. "There are thousands of court files without FL-190's. You cannot, with a straight face, tell me that they all have never noticed that the files do not contain this mandatory Judicial Council form where required after law and motion hearings." According to public records, Julie Setzer is paid $4,460 every two weeks, Colleen McDonagh earns $3,460 every two weeks, and Denise Richards earns $36 per hour. Family court judges are paid $169,000 per year.  

Filing and service of the Notice of Entry of Judgment is required by California Rules of Court rule 5.134. As of 2011, the failure by government employees to comply with any state court rule is a violation of the Whistleblower Protection Act, and constitutes government misconduct in the same category as corruption, malfeasance, bribery, theft of government property, fraud, coercion and similar types of misconductCourt employees who violate court rules and other laws also violate Tenet Five of the California Court Employee Code of Ethics

At the local level, Sacramento County Superior Court policies and administrative procedures provide a discipline process for court employees who violate court rules, cause discredit to the court, or engage in discriminatory, dishonest, discourteous or unbecoming behavior. Click here to read the court's discipline policy. 
"It is understood that the Court has a critical role to play in the County's justice system. It is vital that the public maintain its trust in the Court system. As a result, trial court employees will be held to a higher standard of conduct than employees of other organizations," reads the policy introduction.  
Click here to read all articles in the Color of Law series.

Related posts:
  • Click here for articles about family court employee misconduct. 
  • Click here for reporting on judicial misconduct. 
  • Click here for posts about the Family Law Facilitator.
  • Click here for family court whistleblower articles. 
  • Click here for family court watchdog coverage. 
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