26 April 2013

Sacramento Superior Court Controversy: Defective Fee Waivers Issued by Judges and Clerks Violate State Law, Block Court Access of Indigent Litigants

This defective fee waiver order was issued by courtroom clerk Christina Arcuri. The complete order contains multiple errors and was rejected by law and motion filing clerks and the Sheriff's Civil Division. 

A Sacramento Family Court News statistical sampling audit of family court cases reveals that court clerks are issuing incomplete, defective fee waiver orders which contain substantive errors rendering the orders useless, and depriving indigent litigants the ability to file court paperwork. 

Under California law, indigent and low income litigants are entitled to a waiver of court filing fees. Certain family court filings - including domestic violence and contempt actions - require proof of personal service and the fee waiver also entitles poor litigants to have papers served by the Sacramento County Sheriff's Department Civil Division.

The fee waiver procedure is specified by California Rules of Court rules 3.50 - 3.58 and the process is standardized throughout the state. But a comparison of orders issued in other courts with those issued by Sacramento Family Court clerks shows the family court orders consistently are not in compliance with state law. 

Family court clerks issue incomplete orders that often result in a Catch-22 situation: When a litigant later attempts to use the defective fee waiver order to file documents the order is refused by public counter filing clerks for being incomplete.

The orders also are rejected as defective when a litigant attempts to have documents served by the Sheriff's Civil Division. In addition, in all of the cases reviewed by SFCN, the orders also omitted mandatory Judicial Council form FW-010 - an entire page of the order required by state court rule 3.52(4).

Carol Miller Courthouse Issues Accurate, Valid Fee Waiver Orders

This fee waiver order issued to the same person by Deputy Clerk D. Turner at the Carol Miller Justice Center in Sacramento complies with state law governing fee waiver procedure. Click here to view the order in a new browser window. 

The family court fee waiver order issued by Christina Arcuri - courtroom clerk for Judge Matthew J. Gary - is not only incomplete and missing the mandatory Judicial Council FW-010 form, it also is filled out by Arcuri using the wrong Judicial Council form. As the accurate, Carol Miller Justice Center fee waiver order reflects, the correct form is FW-003.

Arcuri used the form for issuance of a fee waiver after a court hearing, FW-008. The litigant listed in the defective order - who is disabled and on public assistance - was entitled to an automatic, non-discretionary waiver and did not have a fee waiver hearing. 

Other fee waiver orders audited by Sacramento Family Court News contained similar errors making the orders unusable. None of the orders resembled the state law compliant fee waiver order issued at the Carol Miller Courthouse.

Oversight and Accountability Absent

Family court watchdogs and whistleblowers have long asserted, and documented, that family court judges and employees appear to be immune from oversight and accountability for misconduct. "Misbehavior in office, or other willful neglect or violation of duty" by a clerk is punishable as contempt under Code of Civil Procedure §1209(a)(3)

Under Canon 3C of the Code of Judicial Ethics, a judge's administrative responsibilities include ensuring staff and court personnel under the judge's direction and control observe "appropriate standards of conduct."

As of 2011, the failure by Judicial Branch 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. Employee conduct that is economically wasteful, involves gross misconduct, incompetency or inefficiency is also covered by the act. 

The act is enforced by the California State Auditor. Court employees who violate court rules and other laws also violate Tenet Five of the California Court Employee Code of Ethics. Yet from the local court to the state auditor, all of these rules, laws and policies have been ignored and gone unenforced.

Court Administration Mismanagement

Court watchdogs also point out that the fee waiver order problem is another example of systemic family court mismanagement by Director of Operations Julie Setzer, Manager Colleen McDonagh and Supervising Courtroom Clerk Denise Richards, and reflects a failure of oversight by Sacramento County Superior Court Presiding Judge Laurie M. Earl and Court Executive Officer Chris Volkers

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 Superior Court policy introduction.
The fee waiver order problem also exposes taxpayers to potential liability for civil rights violations against indigent litigants, and violates several state laws, including the Whistleblower Protection Act, which classifies court rule violations by court employees as an improper governmental activity

In upcoming posts, SFCN will report on additional problems with fee waiver orders and procedure in family court, including an attempt by Judge Matthew J. Gary to block appellate review of his own orders by unlawfully using the fee waiver review process against an indigent family court litigant.

Related articles:
  • Sacramento Family Court chiefs Julie Setzer and Colleen McDonagh responsible for serial court rule violations. Click here
  • Family court appeals unit illegally rejecting appeals by unrepresented, financially disadvantaged litigants. Click here
  • Family Law Facilitator Lollie Roberts gives false info to indigent pro per litigants. Click here.  
  • Family court clerks let judge pro tem attorneys file sham entry of judgment paperwork. Click here
  • Court Executive Officer Chris Volkers silent on fixing appeals unit problems. Click here
  • Other court employee misconduct articles: Click here

For additional reporting on the people and issues in this post, click the corresponding labels below: