17 April 2013

Judge Jaime Roman Controversy: Issues Vexatious Litigant Order Against Opposing Party for Part-Time Judge Divorce Attorney Charlotte Keeley Without Holding Required Court Hearing

California 3rd District Court of Appeal – Sacramento Justice Vance W. Raye – Justice Jonathan K. Renner - Justice Coleman A. Blease – Justice Ronald B. Robie – Justice William J. Murray Jr. – Justice George W. Nicolson – Justice M. Kathleen Butz – Justice Elena J. Duarte – Justice Harry E. Hull Jr. – Justice Louis R. Mauro – Justice Andrea Lynn Hoch – Justice Jonathan K. Renner Third District Court of Appeal California - California Commission on Judicial Performance Director Victoria B. Henley Chief Council - CJP Chairperson Anthony P. Capozzi, Vice-Chairperson Justice Ignazio J. Ruvolo 1st District Court of Appeal California
Controversial divorce attorney and part-time Sacramento Superior Court judge Charlotte Keeley (R) leaves a family court hearing with client Katina Rapton. Keeley works as a volunteer judge in the same court.  

News Analysis & Opinion

The Sacramento Family Court News analysis team has been working overtime scrutinizing and trying to make sense of a controversial 20-page statement of decision issued on Nov. 14 of last year by Supervising Family Court Judge Jaime R. Roman. Click here for our initial report from 2012.

Roman's decision is now being challenged in both the Third District Court of Appeal, and in a federal class action lawsuit filed March 22 in U.S. District Court in San Francisco. It is certain that taxpayers will get a substantial bill for each case.

Court watchdogs contend Roman's order exemplifies the overt lawlessness that occurs weekly in family court, and the preferential treatment that full-time judges provide for-profit attorneys who also serve as temporary judges


The unprecedented ruling - which was made-to-order for Judge Pro Tem attorney Charlotte Keeley - rewrites California vexatious litigant law and procedure. Watchdogs hold Judge Roman responsible for putting taxpayers on the financial hook for the costs of yet another unnecessary appeal from family court, and the federal litigation.

In another pointless appeal caused by judicial misconduct, Judge Matthew J. Gary unsuccessfully attempted a similar rewrite of putative spouse law and in 2011 was reversed in full by the Third District Court of Appeal. Our analysis indicates that Judge Roman's order likely is headed for the same fate. 

Off-the-Rails at Conjunction Junction

 



The confusing legal rationale of Judge Roman's 20-page decision is constructed from a series of allegedly consistent conjunctions conjoining components of the Family Code, Code of Civil Procedure, and court rules. For example, Roman writes at page six:


  • "Sacramento Superior Court Rule 14.02(C), consistent with Code of Civil Procedure section 2009, in conjunction with Family Code section 210.." and
  • "Code of Civil Procedure section 1008(a), in conjunction with Family Code section 210..." at page eight, and
  • "California Code of Civil Procedure section 2009 in conjunction with Family Code section 210...California Rules of Court rule 3.1306(a), in conjunction with California Rules of Court, rule 5.21...See Family Code section 217(c); California Rules of Court, rule 3.1306(b), in conjunction with rule 5.21 and rule 5.119," at page 19

Judge Roman's statute and court rule references, and calculated omission of contrary authority suggest an intent to cherry-pick law - including law not applicable to a vexatious litigant proceeding - to reach a predetermined result for the benefit of Judge Pro Tem attorney Charlotte Keeley

In our first report on the decision, veteran court watchdog Robert Saunders astutely observed that the judge used reverse engineering. "In other words, he knew how he wanted to rule and from there worked backwards to try and justify an unjustifiable ruling," Saunders said in 2012.

Saunders' analysis appears to be substantially accurate, according to the family and civil law reference books used by judges, attorneys and Sacramento Family Court News. The logically inferred intent of Roman's risible, convoluted conjunctions is to enable himself to designate a family court party a vexatious litigant and issue a $2,500 sanctions assessment and 13 additional orders against the same party - all without a court hearing and oral argument. California law indicates that Judge Roman is off-the-rails at conjunction junction.

California Practice Guide: Civil Procedure Before Trial, the gold standard civil law reference work used by judges and attorneys, indicates that Judge Roman attempted to create the illusion that his order was grounded in legitimate law by misstating and misapplying Code of Civil Procedure § 2009, Family Code § 210, and § 217, and California Rules of Court rules 3.1306 and 5.21. The perplexing rationale Roman cobbled together from parts of each is preempted and effectively nullified by the vexatious litigant statute and decisional law, according to the Guide.

Court watchdogs and whistleblowers charge that Judge Roman's prejudgment, unlawfully vacated hearing and erroneous statement of decision are more examples of Chris Volkers, Julie Setzer and other court administrators failing to adequately train, supervise, and discipline family court judges. They point out that Judge Roman, the supervising family law, probate and ADA judge has limited family court experience, and often confuses civil law with family law. 


At the end of her own two-year stint in family court, Judge Sharon Lueras confessed to the family law bar that, at the beginning of her family court assignment, she knew nothing about family law. The consequences of inadequate training and supervision can be tragic. Unrepresented litigant Jessica Hernandez blames Lueras for the death of her son at the hands of her ex-husband. Click here for our coverage of the Hernandez case.


The Disappearing Hearing 


Supreme Court of California Justice Tani G. Cantil-Sakauye, Justice Goodwin Liu, Justice Marvin R. Baxter, Justice Ming W. Chin, Justice Kathryn M. Werdegar, Justice Joyce L. Kennard, Justice Carol A. Corrigan, Justice Mariano-Florentino Cuellar,  Justice Leondra Kruger  California Supreme Court - California Commission on Judicial Performance Director Victoria B. Henley Chief Council - CJP Chairperson Anthony P. Capozzi, Vice-Chairperson Justice Ignazio J. Ruvolo 1st District Court of Appeal California
Attorneys Sharon Huddle (R) and Charlotte Keeley at a court hearing before Judge John Winn.















As we reported in our original coverage, Judge Roman unilaterally cancelled a family court hearing calendared for Nov. 14, 2012. The hearing was scheduled for the purpose of arguing and resolving 15 disputed issues in the case Katina Rapton vs Andrew Karres.

On the day of the hearing, the parties and attorneys arrived at the courtroom and were told by the judge that the hearing was vacated and would not take place. A dumbfounded Sharon Huddle, the attorney for Karres, had the judge repeat the statement a second time while being recorded by a court reporter. Click here to read the court reporter's transcript, obtained exclusively by Sacramento Family Court News.

At the end of the non-hearing, Judge Roman scrawled out a minute order that read only "VACATED: COURT STATEMENT OF DECISION." The day before the hearing, Roman wrote, signed, filed, and mailed to the attorneys a 20-page statement of decision resolving all issues.

Virtually all of the rulings were in favor of Rapton and against Karres. Rapton, the Mel Rapton Honda heiress is represented by veteran family law attorney and temporary judge Charlotte Keeley. The orders requested by Keeley and granted by Roman included designating Karres a vexatious litigant, and ordering the financially disadvantaged litigant to pay Keeley $2,500 in sanctions. The vexatious litigant designation severely restricts Karres' access to every court in California by requiring him to get pre-approval from a presiding judge before he can file anything, anywhere in the state.


Conjunction Malfunction 


The relationship between family law, civil law and the court rules applicable to each can be confusing. But the family law procedure manual used by judges and attorneys, California Practice Guide: Family Law neatly sorts it all out in just two pages, which, apparently, is news to Judge Roman who clumsily cut, conjoined, and pasted conflicting laws and rules to justify his vexatious litigant order.

An assessment of the legality of Roman's order blacklisting Andrew Karres as a vexatious litigant begins with the law itself. California's vexatious litigant law is codified at Code of Civil Procedure §§ 391-391.8. Wikipedia explains how the law works at this link. The law was intended to limit frivolous litigation by unrepresented, pro per parties in civil courts. When a judge issues an order designating a self-represented litigant as a vexatious litigant, the Constitutional rights of access to the courts, due process of law, equal protection of law and the right to petition the government for redress are severely restricted. 


Due to the harsh consequences of the vexatious litigant label, California law requires full due process before the order can be issued, including notice and a court hearing where written or oral evidence is presented. The notice and hearing requirements of the vexatious litigant statute are difficult to misconstrue:
California Commission on Judicial Performance Director Victoria B. Henley Chief Council - CJP Chairperson Anthony P. Capozzi, Vice-Chairperson Justice Ignazio J. Ruvolo 1st District Court of Appeal California - California 3rd District Court of Appeal – Sacramento Justice Vance W. Raye – Justice Jonathan K. Renner - Justice Coleman A. Blease – Justice Ronald B. Robie – Justice William J. Murray Jr. – Justice George W. Nicolson – Justice M. Kathleen Butz – Justice Elena J. Duarte – Justice Harry E. Hull Jr. – Justice Louis R. Mauro – Justice Andrea Lynn Hoch – Justice Jonathan K. Renner Third District Court of Appeal California
"At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion," reads the law at section 391.2.
At § 391.3, the vexatious litigant law specifies, twice, that a decision is made "after hearing the evidence on the motion." The California Practice Guide for civil law recites the procedure for a vexatious litigant determination, including the required court hearing. 

Based on the 2002 appellate court case Bravo v. Ismaj, "[a] party may not be declared to be a 'vexatious litigant' without a noticed motion and hearing which includes the right to oral argument and the presentation of evidence," according to the Guide.

Since the 2002 Bravo case, at least 20 other published and unpublished appellate court decisions have relied on and mirrored the controlling holding in Bravo, including these two cases from 2009 and 2012.

In a single paragraph and four footnotes at page 19 of his 20-page statement of decision, Judge Roman provides his rationale for issuing the vexatious litigant order without a hearing. The judge recites sections of the Code of Civil Procedure, Family Code, and court rules that he claims, when conjoined, authorize him to "vacate the hearing in this matter..."

Notably absent from the justification is any reference to the Bravo line of cases, the notice and hearing requirements of the vexatious litigant statute, and the instruction of the California Practice Guides, all of which contradict Roman's justification for denying Karres a hearing with oral argument and the presentation of evidence. 

Roman does cite to a single case law reference, Reifler v. Superior Court, a 1974 case which was effectively overruled by the Legislature as of January 1, 2011, and which in any event has no legitimate connection to the procedure for declaring a litigant vexatious.

Judge Roman gives his reasons for blacklisting Karres statewide as a vexatious litigant at pages 15-18 of his 20-page statement of decision. Absent from the ruling is the boilerplate recital that "The Court has considered the moving and responding papers, the evidence and argument presented at the hearing, and the files herein," which appears on page one of this vexatious litigant order from a family court case in Santa Clara County.

Judge Roman's unlawful order declaring Karres a vexatious litigant is now the subject of both a costly appeal and federal civil rights litigation against Judicial Branch officials. The appeal and federal case will cost the parties and taxpayers significant sums. The current cost to taxpayers for a single appeal is between $8,500 and $25,000, according to recent appellate court decisions. Ironically, vexatious litigants are routinely accused of, and punished for wasting scarce appellate court resources with frivolous litigation.

"Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate system and the taxpayers are damaged by what amounts to a waste of this court's time and resources," reads a line of cases from 1988 to 2012, beginning with Finnie v. Town of Tiburon.
The same should be said about the unnecessary appeal and federal litigation against the government compelled by Judge Roman's order.

Related articles:

  • Click here for our complete coverage of the Rapton-Karres case. 
  • Click here for our reporting on Judge Jaime R. Roman. 
  • Click here for coverage of judicial misconduct. 
  • Click here for our special Judge Pro Tem Page. 
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