16 May 2013

Sacramento Superior Court Judges Violate State Law & Code of Judicial Ethics In Temporary Judge Conflict of Interest Disclosure Controversy

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, 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 -kathryn werdegar – goodwin liu – marvin baxter – ming chin – joyce kennard – carol corrigan – tani cantil-sakauye – 3rd District Court of Appeal – Sacramento -Justice Vance W. Raye - Justice Cole Blease – Justice Ronald B. Robie – Justice William J. Murray Jr. – Justice George Nicolson – Justice M. Kathleen Butz – Justice Elena J. Duarte – Justice Harry E. Hull Jr. – Justice Louis Mauro – Justice Andrea Lynn Hoch – Third District Court of Appeal California - Benjamin B. Wagner – Melinda Haag – Jayne Kim – Victoria B. Henley – Elaine M. Howle - Judge Kevin R. Culhane – Hon. Kevin R Culhane – Judge Kevin Culhane -
Sacramento Family Court reform advocates say the tattered flag that flies above the courthouse is emblematic of the systemic rule of law breakdown - including serial conflict of interest disclosure violations - which they assert has taken place in court proceedings.

Judges Fail To Make Conflict Disclosures: Systemic Legal Error Taints Countless Cases



In hundreds of cases,
Sacramento Family Court judges have failed to make critical conflict of interest disclosures required by state law and the Code of Judicial Ethics, according to a courthouse whistleblower

The disclosure omission is ongoing and infects additional cases each week. The legitimacy of orders and judgments in cases tainted by the error are subject to challenge by trial court set-aside motions or costly appellate court review.  

In most of the cases, one party is unrepresented and indigent - substantially reducing the chances that relief will be sought, but nonetheless requiring taxpayers to foot the bill in the event of subsequent proceedings due to the error. The potential public financial liability is significant. The current cost to taxpayers for a single appeal is between $8,500 and $25,500, according to recent appellate court decisions.

New court records leaked by a whistleblower and posted online exclusively by Sacramento Family Court News, including a conflict of interest disclosure filed by a civil court judge, and another filed by a federal judge, show that other Sacramento County Superior Court judges - and federal judges - do comply with conflict laws.

To continue reading, click Read more>> below...


The Legal Duty To Disclose


Sacramento Federal Court Eastern District of California – United States Courts, US District Court Sacramento, Judge William B. Shubb, Judge Edmund F. Brennan, Judge Garland E. Burrell Jr, Judge Carolyn K. Delaney, Judge Morrison C. England Jr, Judge Gregory G. Hollows, Judge John A. Mendez, Judge Kendall J. Newman, Judge Troy L. Nunley, Judge Allison Claire, Judge Dale A. Drozd, Judge Lawrence K. Karlton, Judge Kimberly J. Mueller, United States Attorney Benjamin Wagner, Judge Robert Hight – Judge Bunmi Awoniyi – Judge Steven Gevercer – Judge Tami Bogert – Judge James Mize – Vance Raye - Victoria Henley CJP - Judge Thadd Blizzard -Court Executive Officer Sacramento County Superior Court - conflict of interest - state law - California Rules of Court - Code of Judicial Ethics - Commission on Judicial Performance - California State Auditor Elaine Howle - Victoria Henley Chief Counsel Commission on Judicial Performance - California Attorney General - Family Court Sacrament - judge misconduct - judges - lawyers - attorneys - family law - Temporary Judge Program Sacramento Superior Court - Benjamin B. Wagner – Melinda Haag – Jayne Kim – Victoria B. Henley – Elaine M. Howle - Judge Kevin R. Culhane – Hon. Kevin R Culhane – Judge Kevin Culhane -
Sacramento Family Court judges are required to disclose on the record
all information relevant to the question of disqualification.
 
As Sacramento Family Court News reported last year, there are more than 60 family law attorneys who also serve as volunteer temporary judges in Sacramento Family Court.

The potential conflict of interest error occurs when full-time family court judges fail to disclose to litigants when the opposing party is represented by an attorney who also serves as a temporary judge.

"It is overly-charitable to call this a 'failure to disclose,'" said a court source with direct knowledge on the matter but not authorized to speak on the record.

"The disclosure never occurs. This is unwritten policy and it amounts to institutionalized concealment of conflict issues that by law must be disclosed. Each day that this continues, more cases are infected with the error and subject to challenge."

Sacramento Family Court News has independently verified that the temporary judge disclosure is not being made in cases where one party is unrepresented and the opposing party is represented by a judge pro tem attorney. One alleged motive is to reduce the chance that a litigant will attempt to disqualify a judge for cause.

"Family court judges are knowingly ignoring the conflict disclosure law because it reduces the odds that a litigant will try to disqualify the judge," the source explained. "This problem also represents a complete failure by court administrators, the Judicial Council, and the Judicial Branch oversight community to train, supervise and discipline family court judges."
In addition to violating state law - including California Rules of Court and the Code of Judicial Ethics - the concealment effectively deprives a party of the right to challenge the judge - a potentially reversible error that opens the door to subsequent collateral relief, according to the Judicial Council and the California Judges Association.

Without the disclosure, "the judge may have concealed facts that would constitute a successful challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her CCP 170.3 right to challenge the judge," according the CJA Ethics Opinion No. 45. The Ethics Opinion directive is mirrored by the Benchguide:

"A judge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification...The parties should have an opportunity to weigh this information when considering whether to challenge the judge...Even if the parties decide to waive disqualification, disclosure helps ensure that they are fully informed when they do so," according to the Benchguide.

Disclosure vs. Disqualification


In the context of the disqualification of a judge, the Benchguide emphasizes that no actual bias is required: "If an average person could entertain doubt about the judge's impartiality, disqualification is mandated," according to section 2.16 of the Benchguide.

In addition, under Code of Civil Procedure §170.1(a)(6) bias may be implied between a party and a judge that is not otherwise a statutory ground for disqualification, according to section 2.19 of the Benchguide. If bias or other conflicts are present, a judge must self-disqualify.

Sacramento Family Court News was recently leaked court documents showing examples where judges disqualified themselves because they believed their recusal "would further the interests of justice" or because "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Click here, here and here to view the court records.

The Flagrant Disclosure Problem


The egregious nature of the problem in Sacramento Family Court, and the distinction between disqualification and disclosure is illustrated by an actual disclosure provided by a whistleblower and filed by Sacramento County Superior Court Judge Richard K. Sueyoshi.

Upon being assigned a civil case at the downtown, Gordon D. Schaber Courthouse, the judge complied with state law and disclosed to the parties and attorneys - on the record - any potential conflict of interest issues. In a minute order, the judge wrote:

"Upon review of the information provided by the parties, the court finds no grounds for its disqualification under Civil Procedure Code section 170.1. While it finds no basis for disqualification, the court, in an abundance of caution, discloses to all parties the following facts relating to [defendant's] counsel:

(1) Prior to joining the bench, the court served as chair of a county bar committee for which [defendant's attorney] served as a committee member. The court's prior contact with [defendant's attorney] was limited to such context. (2) The court currently serves as a member of the Strategic Evaluation Committee, which was formed by the Chief Justice in March 2011 to evaluate and make findings and recommendations to improve the efficiency of the Administrative Office of the Courts." Click here to view the order.
Judge Sueyoshi disclosed a potential conflict with an attorney who he served with on a county bar committee before he became a judge. Sacramento Family Court judges currently, as sitting judges, meet monthly with the controversial Sacramento County Bar Association Family Law Executive Committee, and often attend and speak at the monthly luncheon meetings of the Bar Association Family Law Section.

All of the attorneys on the Executive Committee and many in the Family Law Section also serve as temporary judges in the same court. Yet the full-time family court judges do not disclose this critical information to opposing parties and attorneys as required by state law. 

For additional information about the troubling monthly meetings of judges, court administrators, and the Family Law Executive Committee, click here.

The Conflict

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, 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 -Supreme Court of California – Chief Justice Tani Gorre Cantil-Sakauye – Associate Justice Carol A. Corrigan – Associate Justice Joyce L. Kennard – Associate Justice Kathryn M. Werdegar – Associate Justice Ming W. Chin – Associate Justice Marvin R. Baxter – Associate Justice Goodwin Liu – Justice Cantil-Sakauye –California Supreme Court -Benjamin B. Wagner – Melinda Haag – Jayne Kim – Victoria B. Henley – Elaine M. Howle -  Judge Kevin R. Culhane – Hon. Kevin R Culhane – Judge Kevin Culhane -
Sacramento Family Court judges failure to 
disclose judge pro tem conflict issues 
jeopardizes hundreds of orders & judgments.

A self-evident potential conflict of interest exists when a private, for-profit attorney representing a client appears in a court where the same lawyer also serves as a volunteer temporary judge.

The full-time judge hearing the case is responsible for disclosing the potential conflict to the opposing party or attorney.

The disclosure is required by state law, including Code of Civil Procedure Sec. 170.1, Canon 2A and subsections of Canon 3 of the Code of Judicial Ethics, and the California Rules of Court Standards for Judicial Administration, Standard 10.20.

The reasons for the disclosure include ensuring that courtroom proceedings are conducted free of conflicts of interest and in a manner that is fair and impartial to all participants, and providing an opposing party all information necessary to make an informed decision whether to seek disqualification of the judge, according to several authorities, including Canons 3B(5), 3E(2), and the Judicial Council California Judges Benchguide.

"A judge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for the disqualification...the parties should have an opportunity to weigh this information when considering whether to challenge the judge," according to the Benchguide.
The language of Canon 3E(2) mirrors the Benchguide:
"In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification."
In addition, under CCP §170.1(a)(6), bias may be implied from a connection between a party and a judge that is not a statutory ground for disqualification under CCP §170.1, according to the Benchguide. The conflict disclosure is considered so critical that it should even be made when the attorney in question is not a judge pro tem, but works at a law firm where another member of the firm is a temporary judge, according to a 2001 Ethics Update from the California Judges Association.

And under the Code of Judicial Ethics, every judge pro tem attorney must take or initiate appropriate corrective action if they become aware that another judge has violated any provision of the Code. Click here. To view a Judicial Council directive about required corrective actions, click here. There is no known case of a temporary judge attorney complying with this important, self-policing requirement.

The California Commission on Judicial Performance has disciplined judges for violating the Code of Judicial Ethics provisions that apply to conflicts of interest. Click here for examples of CJP conflict of interest disciplinary decisions.

Judge Pro Tem Conflict Disclosure History


The Ethics Committee of the California Judges Association provides all judges – both full-time and temporary – with advisory Ethics Opinions and Judicial Ethics Updates. The updates have been cited by the California Supreme Court, appellate courts, and the Commission on Judicial Performance. 

The Judicial Council uses CJA Ethics Opinions in the California Judges Benchguide. The California Code of Judicial Ethics is partly based on the former CJA Code of Judicial Conduct, which was the original judicial standards code in the state.

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 Family Court Judge Laurie Earl -Elaine M. Howle State Auditor Bureau of State Audits - Victoria B. Henley Director Chief Counsel Commission on Judicial Performance – Steven Jahr Administrative Director of the Courts - Phillip J. Jelicich Principal Auditor Bureau of State Audits - Janice M. Brickley Legal Advisor to Commissioners Commission on Judicial Performance - Judicial Council and Court Leadership Services Division Jody Patel Chief of Staff - Doug D. Cordiner Chief Deputy State Auditor Bureau of State Audits - Bradford L. Battson Senior Attorney III Commission on Judicial Performance - Judicial and Court Operations Services Division Curtis L. Child Chief Operating Officer – Donna L. Neville Staff Counsel IV Bureau of State Audits- Sei Shimoguchi Senior Attorney III Commission on Judicial Performance - Judicial and Court Administrative Services Division Curt Soderlund Chief Administrative Officer – Judge Kevin R. Culhane – Hon. Kevin R Culhane – Judge Kevin Culhane -

In an Ethics Update issued in February,1992, the committee advised that full-time judges do not have to disqualify themselves when an attorney who also acts as a temporary judge in the same court appears before the judge. The 1992 Ethics Update advised that a judge should disclose knowledge of the attorney’s judge pro tem service to all parties and other attorneys.

In essence, the full-time judge is hearing a case in which a colleague - a part-time judge in the same court - is acting as a private, for-profit attorney. A judge who fails to disclose her or his knowledge that the attorney is a judge pro tem may violate Canons 2, 3C(1) and 3D of the Code of Judicial Ethics, according to the 1992 Ethics Update, which was based on the 1992 version of the Code of Judicial Ethics.



Code of Judicial Ethics 1996 Revision


The Code of Judicial Ethics was updated in 1996. The revision changed the disclosure requirement from being optional ("judge should disclose"), to being mandatory ("judge shall disclose"). Since 1996, disclosure of potential conflict issues on the record is not optional. CJA emphasized the significance and ramifications of the change in Ethics Opinion No. 45, issued in January, 1997.
"If the judge fails to disclose...the judge may have concealed facts that would constitute a basis for a successful challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her CCP 170.3 right to challenge the judge," according to the CJA Opinion.
In a March, 2001 Ethics Update, CJA advised judges to apply a similar standard when an attorney serves pro tem in the judge’s court and a member of the attorney’s firm appears before the judge. CJA warned judges that failing to make the disclosure on the record may violate Canon 3 of the Code of Judicial Ethics. Canon 3E requires that "In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification...even if the judge believes there is no actual basis for disqualification."


Other State and Federal Laws


Sacramento Family Court judges who fail to disclose judge pro tem attorney conflicts also may be in violation of other state and federal laws, according to courthouse sources. As Sacramento Family Court News reported in 2011, in September of that year the California Whistleblower Protection Act was revised to encompass the Judicial Branch of government, including judges, administrators and court employees.
The conflict of interest disclosure issue may constitute an improper governmental activity under the Act. Willful omission to perform duty and activities that are economically wasteful, involve gross misconduct, incompetency or inefficiency are all included in the definition of an improper governmental activity.

The massive scope of the conflict of interest disclosure problem may expose the court to financial liability in a civil lawsuit for the deprivation of civil and constitutional rights and other grounds. Federal criminal statutes also may 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. Family court judges and administrators who fail to provide honest services to the public may be subject to criminal prosecution under federal law.

Click here to view the list of attorneys who also serve as volunteer temporary judges.


UPDATE: Supreme Court Committee Confirms Temporary Judge Conflict Disclosure Violations

Related Articles:

* What the Temporary Judges Do - Watchdogs Claim Pro Tems Get Preferential Treatment & Court Runs Two-Tiered System

* Sacramento Family Court Temporary Judge List

* Presiding Judge Laurie Earl Lets Outlaw Judge Pro Tems Flaunt Ethics Rules

* Without Hearing and Opportunity to be Heard, Judge Issues Vexatious Litigant, Sanction and Other Rulings Against Opponent of Judge Pro Tem Attorney

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


Sacramento Family Court News acknowledges the anonymous sources who initially provided us with information for this article. We appreciate the tips. To send us your anonymous tip by email, use our Contact Page. All communications are protected by the reporter's privilege and the California Shield Law. For further details about our confidentiality policy, see our About Page and our Terms & Conditions Page. This is an updated version of an article originally published in April, 2012.