|Sacramento Family Court clerks file these counterfeit entry of judgment forms for local divorce lawyers who also work as part-time judges in the same court, according to a government whistleblower.|
Color of Law: The Conspiracy to Discourage and Obstruct Pro Per Appeals
A Sacramento Family Court Report Special Investigation: Part 4.
Sacramento Family Court News has obtained court records indicating that family court clerks allow judge pro tem attorneys to file counterfeit "Notice of Entry" paperwork in place of the Notice of Entry of Judgment that court clerks are by law required to file and serve on all parties.
The sham notice conceals a critical appeal rights notification from indigent, unrepresented family court litigants, and at the same time ostensibly constricts the time frame for filing an appeal from 180-days to just 60-days, according to a family court whistleblower. The fake form also omits an important clerk's certificate of mailing, which the California Supreme Court has said is designed to avoid ambiguity in appeal time frames.
"This is a component of the collaboration between court administrators, judges and judge pro tem attorneys to eliminate pro per appeals," the source said. "The fake 'Notice of Entry' contains none of the mandatory notifications about appeal rights, and appeals unit clerks use the notice to unlawfully reject appeals after 60-days - as if it were the same as the mandatory Judicial Council FL-190 Notice of Entry of Judgment form," explained the whistleblower, who spoke on the condition of anonymity because they could be subject to retaliation for the disclosure.
Instead of rejecting for filing the self-serving, homemade form, court clerks file it and then appeal unit clerks use it to impose an illegal, condensed appeal time frame on unwary pro pers, according to the source.
As Sacramento Family Court News reported in Part 1 and Part 2 of our Color of Law series, court administrators, including Supervising Family Law Facilitator Lollie Roberts have directed court clerks to ignore state law requiring court staff to file and serve the FL-190 Notice of Entry of Judgment for all appealable orders issued at motion and OSC hearings.
Roberts has instructed her staff to notify unrepresented, financially disadvantaged litigants that the FL-190 is not required for appealable orders issued at motion and OSC hearings. Click here to view the inaccurate information about the FL-190 requirement that Office of the Family Law Facilitator staff dispense to unrepresented litigants. Click here to read all of Part 1 of the Color of Law series and click here for Part 2.
|Paula Salinger is a family law attorney, |
temporary judge,and secretary of the
Sacramento Bar Association
Family Law Executive Committee.
The three samples were filed by attorney and temporary judge Paula Salinger. Salinger also acts as secretary on the Family Law Executive Committee of the Sacramento County Bar Association Family Law Section. Click here to view the notices, which were filed in 2011 and 2012. As SFCN reported, in 2011
Salinger was granted a waiver by then-Presiding Judge Steve White of the minimum State Bar membership requirement for temporary judges. The attorney is a partner at Woodruff, O'Hair, Posner and Salinger Inc., a prominent family law firm where all four attorneys also hold the Office of Temporary Judge.
One of the deceptive forms was signed on Salinger's behalf by firm partner and Judge Pro Tem Jeffrey J. Posner. From 2006-2009, Posner held each officer post on the Family Law Executive Committee.
Judge pro tem attorneys use the fictitious notice of entry against self-represented litigants who have little knowledge of family law and procedure, according to the whistleblower. "The attorneys use the fake notice in cases where the opposing party doesn't have a lawyer and doesn't know any better. If a pro per does somehow figure out that they can appeal an order from a motion or OSC hearing, and then tries to file a notice of appeal, the appeals unit will use the spurious Notice of Entry to claim the appeal is untimely after 60-days," the source explained.
"Without the filing and service of the mandatory FL-190 Judicial Council form by a court clerk, the appeal time frame is, by law, 180-days. The pseudo notice isn't used by judge pro tem attorneys in cases where both sides have a lawyer because most attorneys know there is no such thing as a quote Notice of Entry of Findings and Order After Hearing, unquote," the whistleblower said.
"Court clerks also know the fake notices are fake, and that they should not even be filing them. But they do file them because they are following orders. It also should be troubling that court filings by pro pers are routinely rejected by filing clerks because of minor technicalities, yet here you have a judge pro tem filing completely sham paperwork without any problem. It's all part of the plan by court administrators, full-time judges, and temporary judges to eliminate appeals by the indigent and unrepresented," the source added.SFCN has confirmed the allegation as substantially accurate. There is no reference to a "Notice of Entry of Findings and Order After Hearing" in multiple family and civil law references searched by SFCN. The leading family law treatise written by and for judges and attorneys, California Practice Guide: Family Law, provides detailed instructions for order after hearing procedure and there is no reference to the notice filed by Salinger.
California Supreme Court Confirms Judge Pro Tem Notice Counterfeit
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.
"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.
The fictitious form filed by family court clerks for temporary judge attorneys does not contain a clerk's certificate of mailing, and is served by a private sector lawyer - not a neutral public court clerk - also raising ethical issues.
Using in place of the state mandated form an unauthorized, self-serving form that omits appeal rights and other important notifications required by law raises moral turpitude and other ethical implications against attorneys who engage in the deception.
In a related situation, SFCN recently documented in Part 3 of the Color of Law series that an appeals unit clerk unlawfully rejected the appeal of an indigent, unrepresented litigant. Falsely claiming under penalty of perjury that the filing and service by the opposing attorney of a Findings and Order After Hearing form constituted a "judgment" and triggered a 60-day appeal time frame, the clerk rejected the appeal as untimely. Click here to read Part 3.
Family Court Oversight and Accountability
|The Supreme Court of California confirms that court clerks |
must serve and file the FL-190 form in applicable proceedings.
Sacramento Superior Court internal policies and administrative procedures specify 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 employee 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.In addition, 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 misconduct. Court employees who violate court rules and other laws also violate Tenet Five of the California Court Employee Code of Ethics.
The lack of oversight and accountability indicates that the deceptive, unlawful court filings are condoned by court administrators. According to a criminal law attorney, the elements of a violation of Penal Code § 182 - conspiracy to pervert or obstruct justice or the due administration of the laws - specify that an agreement or conspiracy may be inferred from the conduct of those accused of the crime.
Other criminal statutes that may apply include Penal Code § 470(c), altering, corrupting or falsifying a legal document, and Penal Code § 470(d), altering a document with the intent to cause damage to a legal, financial or property right. The facts and circumstances surrounding the fake notice of entry filings imply an intent to effectively alter the valid FL-190 form and replace it with a corrupt or altered document intended to impede the lawful appeal rights of the opposing party.
Federal Civil and Criminal Liability
Depriving unrepresented, financially disadvantaged litigants of civil or constitutional rights also may expose court employees, supervisors, and taxpayers to financial liability in a civil lawsuit. Federal criminal statutes may also apply. Federal criminal law prohibits conspiracy against civil rights and deprivation of rights under color of law.
Sacramento Family Court receives federal funding, and court users have a federally protected right to honest services. Court employees, managers and administrators who collude with private sector lawyers and fail to provide honest services to the public may be subject to criminal prosecution under federal law.
To a view a federal criminal indictment for honest services fraud involving collusion between government and court employees and private sector attorneys click here.
In Part 5 of our Color of Law report: the unlawful fee waiver gauntlet used by court clerks and judges to frustrate appeals by indigent, unrepresented family court parties.
Click here to read all articles in the Color of Law series.
- 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.
- Click here for articles about judge pro tem attorney Paula D. Salinger.
- Click here for coverage of Woodruff, O'Hair, Posner and Salinger, Inc.
For additional reporting on the people and issues in this post, click on the corresponding Labels below.