Judge Matthew J. Gary Misconduct: Victim of Illegal Order Issued for Divorce Attorney Timothy Zeff Homeless But Surviving

Judge Matthew Gary Order for Partner of Judge Pro Tem Attorney Scott Buchanan Results in Homelessness for Disabled Mom 

Larscheid, Buchanan & Zeff family law attorney Timothy Zeff requested and was granted an unlawful $920 child support order by Judge Matthew J. Gary. Zeff's partner, Scott Buchanan, is a family court judge pro tem. The order financially devastated 52-year-old disabled, single parent Susan Ferris. Evicted from her Sacramento home and now homeless, she sleeps on the couch of a Bay Area friend.  

SACRAMENTO FAMILY COURT NEWS SPECIAL REPORT 

The disturbing aftermath of an unconscionable $920 child support order issued by Judge Matthew J. Gary shows one of the ramifications, and the inexorable human cost of what court watchdogs contend is unchecked family court corruption and cronyism. The April, 2012 order gutted the monthly disability income of disabled, unrepresented, financially disadvantaged family court litigant Susan Ferris from $1,256 to $336. Gary previously issued an equally unlawful order prohibiting the 52-year-old single parent from having any contact with her daughter, Megan. 

The April support order financially devastated Ferris, leaving her with far less income than she needed for food, utilities, and rent. After several months under the order and behind on her rent, Ferris was evicted from her East Sacramento home and became homeless. The same court order records that her ex-husband, David Ferris, earns $8,089 per month. Click here to view Gary's minute order, obtained and posted online exclusively by Sacramento Family Court News. As a result of the order, Susan Ferris' credit has been thrashed, the repo man came for her car, and the eviction will now be part of her renter's report, making it virtually impossible for her to rent a home in the future.

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Like orders issued by the same judge in other cases, both minute orders contain no facts or law justifying the draconian rulings, making them patently illegal under state law. The comparison to orders in other cases reveals a consistent pattern that infers a calculated and deliberate intent to conceal from review the judge's misuse of Family Code statutes for the prohibited purpose of punishing unrepresented parties. 

Gary, a fervent right-wing ideologue, also detests what he reportedly calls the "entitlement mentality" of family court parties who obtain fee waiver orders or are on public assistance, according to a court employee. The template-like repetition of the judge's bad faith tactics and overt socioeconomic bias also evinces an abdication of oversight responsibilities by Court Executive Officer Chris Volkers, superior court Presiding Judge Laurie Earl, and family court Supervising Judge James Mize. 

Family law attorney Timothy Zeff obtained a child support order for his client, David Ferris, who makes $8,089 per month. The order made his disabled ex-wife, Susan Ferris, homeless. In this exclusive SFCN photo, Susan sleeps with her Yellow Lab "Buddy" on the couch of a Bay Area friend. Family law attorney J. Scott Buchanan, Zeff's partner, holds the Office of Temporary Judge in Sacramento Superior Court.     

Gary issued the $920 child support order against Susan Ferris at the request of veteran family law attorney Timothy Zeff of the Sacramento family law firm Larscheid, Buchanan & Zeff. Zeff's partner is attorney and family court judge pro tem J. Scott Buchanan. At a subsequent hearing three weeks later, Zeff requested and Gary issued an additional illegal order directing Susan Ferris to pay $2,500 to her ex-husband for Zeff's attorney fees. Click here to view the May attorney fees order, which also is barren of any facts or law justifying the ruling. 

The order also is unlawful because it does not record consideration by the judge of the comparative wealth of the parties as required by Family Code §271, the statute Gary used for the order. Click here to view the law applicable to the comparative wealth assessment requirement. Gary has a documented history of issuing unlawful, appeal-proof orders in cases where one party is represented by a judge pro tem family law attorney and the other party is unrepresented and indigent or otherwise financially disadvantaged. 

Serial Misuse of Family Code §271 Sanctions Against Indigent, Unrepresented Litigants

Sacramento Family Court records, court reporter transcripts, and eyewitness accounts indicate that judges routinely issue illegal, draconian financial sanctions against indigent, unrepresented, pro per parties. State law - which requires a judge to consider the parties' income, assets, and liabilities, and the financial burden on the sanctioned party - is simply ignored. 

Sacramento Family Court News audits of other family court case files show that Judge Matthew Gary routinely issues severe, disproportionate Family Code §271 attorney fee sanction orders against unrepresented, financially disadvantaged litigants. The statute requires a judge to compare the income, assets and liabilities of both parties before making a sanction ruling. The law is impossible to misconstrue: 

"In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities." reads Family Code §271. 

Court reporter transcripts, minute orders and other records indicate that Gary - a former family law attorney - does not consider the income, assets and liabilities of both parties, and in cases where only one party has an attorney consistently omits the mandatory comparative wealth assessment required by the law. The draconian sanction orders are unlawful but nonetheless effective against pro per parties with little knowledge of family law, much less knowledge of the appellate law and procedure required to contest the order. 

Judge pro tem attorney Paula Salinger requested and was granted this unprecedented sanctions order by Judge Matthew J. Gary against an indigent, unrepresented litigant. Gary recorded no facts, law or evidence in support of the order, making it virtually appeal-proof. 

In one example cataloged by court watchdogs and memorialized by a court reporter's transcript, when directly asked if he had considered the comparative wealth of the parties before assessing more than $10,759 in attorney fee sanctions against an indigent, self-represented party, Gary conceded he had not, and appeared to express, or feign ignorance of the law. The transcript records the judge repeatedly using a verbal diversion to the payment terms of the sanction, a separate component of the sanction law unrelated to the comparative wealth consideration. To view the transcript excerpt, click here. To view the complete transcript, click here.

The separate and distinct comparative wealth assessment is required specifically to prevent the misuse of Family Code §271 sanctions to discourage an economically weaker party from asserting their rights, according to both state law and the family law legal reference used by judges and attorneys, California Practice Guide: Family Law, published by The Rutter Group. To view view the Practice Guide reference, click here. To view comparative wealth decisional law references, click here. 

Sanction Payment Terms That Ensure Default   

Knowing the litigant would default on the first payment, Judge Matthew Gary ordered an indigent party without assets or income of any kind to make sanction payments of $25 per month on a balance of $10,759. If the payments were made, it would take 35 years to pay off the debt. For the benefit of judge pro tem divorce attorney Paula Salinger, the judge sua sponte - on his own - also made the payment terms subject to "adjustment at trial."  

Family Code §271(c) provides that:

"An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of community property."

In addition to ignoring the comparative wealth legal requirement, Gary also ignores this mandatory component of the law. Knowing an indigent litigant without assets or income will be unable to make a monthly sanction payment, the judge orders the litigant to do so, ensuring default when the first payment comes due. When the payment is missed, after 10-days the entire balance is due, as shown in the order above. Click here to view the complete order.   

And like the minute orders in the Ferris case, the facts and law justifying the unprecedented $10,759 attorney fee sanction are omitted from Gary's minute order. Published by the Judicial Council, the California Judges Benchguide Courtroom Control: Contempt and Sanctions instructs judges who issue Family Code §271 sanctions 

"[t]o issue a written order and to avoid stating conclusions in the words of the statute. Give a factual recital, with reasonable specificity, of the circumstances leading to the order. If desired, incorporate by reference portions of a party's papers that adequately set forth the conduct, circumstances and legal arguments providing the bases for the court's conclusions." Click here to view this section of the Benchguide.

The Benchguide directions mirror California Rules of Court rule 2.30 - sanctions for rules violations in civil cases - and the elementary principle of law that "An order imposing sanctions must be in writing and must recite in detail the conduct or circumstances justifying the order." Click here. Without any factual recital, portions of the party's papers, or references to the conduct and circumstances justifying the ruling, Gary ordered the unrepresented, indigent litigant to pay a $10,759 sanction for the attorney fees of judge pro tem family law attorney Paula Salinger. 

Salinger is an officer of the Sacramento County Bar Association Family Law Section and partner at the controversial family law firm Woodruff, O'Hair, Posner and Salinger. To view the astonishing, complete hearing transcript - which SFCN will report on in an upcoming article - click here. Original, court case file records from this and other cases indicate that Gary routinely uses unlawful sanction orders for the explicitly prohibited purpose of discouraging economically weaker parties from asserting their rights, and to send the message that returning to court will result in still more financial punishment. 

In addition, to prevent the one-sided, unfair outcomes previously common in family court cases with socioeconomic imbalances between the parties, the Legislature has explicitly mandated equalizing wealth disparities in a variety of family court proceedings. For example, in the context of providing financially disadvantaged parties with attorney representation, to ensure parity between the parties attorney fee awards must be "just and reasonable," and take into account the "relative circumstances" of each spouse. Click here to view more than 40 court of appeal decisions emphasizing this critical, long-established principle of family law.     

Concealment of Errors and Misconduct Using Appeal-Proof Orders

To avoid being reversed on appeal, unethical judges will leave out of an order the facts, law and evidence on which an order is based, according to California Practice Guide: Civil Appeals and Writs, published by The Rutter Group. 

Gary also has perfected the use of "appeal-proof" orders, which make appeals attempted by indigent, self-represented litigants futile, according to court reform advocates. Court watchdogs have collected minute orders authored by Gary in cases where one party is unrepresented and financially disadvantaged, and compared them with the orders of other judges. The orders issued by Gary consistently show that the judge does not memorialize the facts, law and evidence supporting the ruling(s) issued, which virtually always are against the pro per. Appellate courts have emphasized that a basic, fundamental duty of a trial court judge is to protect the appeal rights of all litigants by making and filing in the trial court record findings on all material issues.

"Under our system it is mandatory that the superior court make and file its finding of the ultimate fact on each material issue created by the pleadings," Herman v. Glasscock. Click here. 

"It is elementary that a failure to find on all material issues raised by the pleadings is ground for reversal." Kaiser v. Mansfield. Click here.  

By comparison, this order from a different judge in a Sacramento Family Court case also involving modification of a child support order contains seven pages of the facts, evidence and law which the judge relied on in making the order. Click here to view the order. And this order from another judge involving modification of custody/parenting time contains 16 pages of facts, evidence and law in support of the order. To view the order, click here. Gary uses the family law legal reference work California  Practice Guide: Family Law to provide monthly "Bench Tips" for family law attorneys in the Sacramento County Bar Association Family Law Section newsletter, The Family Law Counselor. 

Gary's own preferred legal reference source makes clear that in child support modification proceedings the order issued by the judge must include a statement of information or reasons. Click here for the Practice Guide reference. "Such findings not only will enable the parties to appreciate the basis for the child support order, they will facilitate judicial review in any future appeal..." according to In re Marriage of Hubner, one of the decisional law references cited by the Practice Guide. Click here to view the Hubner case.    

Although Gary has an legal and ethical obligation to preserve the appeal rights of all litigants, including the poor, under the doctrine of implied findings any appeal taken from an order authored by the judge is all but futile. Where a trial court order is barren of facts supporting the order, the doctrine requires a reviewing court to infer that the trial court judge made all factual findings necessary to support the order. A related legal principle, the presumption of correctness, requires an appellate court to "indulge all presumptions supporting the judgment or order" when the order issued by a trial court judge omits the facts, law and evidence on which the ruling is based. 

Unethical judges who issue rulings they know could be reversed on appeal will "cloak" the rulings in the presumption of correctness by leaving an incomplete record for review, according to the legal reference used by judges and attorneys for appellate court procedure, California Practice Guide: Civil Appeals and Writs, published by The Rutter Group. The orders issued by Gary also violate the Trial Court Performance Standards specified in the California Rules of Court Standards of Judicial Administration, including the following provisions of Standard 10.17: 

• (3)(A) Trial court procedures faithfully adhere to relevant laws, procedural rules, and established policies...
• (3)(D) Decisions of the trial court unambiguously address the issues presented to it and make clear how compliance can be achieved...
• (3)(F) Records of all relevant court decisions and actions are accurate and properly preserved. 

Click here to view these portions of Standard 10.17. 

An example of an attempted appeal of a ruling which Judge Matthew Gary cloaked in the presumption of correctness is this unpublished 3rd District Court of Appeal decision. The reviewing court noted that the facts, law and evidence recited in the written trial court order issued by Gary consisted entirely of "insufficient facts/res judicata." The court of appeal mechanically invoked presumption of correctness and implied findings principles, writing "we must conclusively presume evidence was presented that is sufficient to support the court's findings," and upheld Gary's ruling. Click here to view the court of appeal decision. Click here to view appellate court docket information verifying Matthew Gary as the trial court judge.      

"Entitlement Mentality" of Disabled and Indigent

Judge Matthew Gary favors "judicial restraint"
and admires U.S. Supreme Court Justice Antonin Scalia,
according to an interview in Sacramento Lawyer magazine.

Witnesses who attended the April and May 2012 Susan Ferris hearings said that Judge Matthew Gary became embroiled and appeared to issue the child support and attorney fee sanction orders to vindictively punish Susan Ferris for asserting her rights in prior proceedings - including an unsuccessful attempt to disqualify the judge - and for associating with a group of court reform advocates, including Robert Saunders, who also act as court watchers for the indigent and disabled. 

Gary reportedly has been livid at Saunders - also indigent, unrepresented and disabled - since Saunders successfully had the judge removed from his own case by a neutral, outside judge from San Joaquin County in 2010. Click here for our exclusive coverage of Gary's disqualification by Saunders. 

Gary and his long time court clerk Christina Arcuri allegedly are right-wing ideologues who despise what they refer to as the "entitlement mentality" of indigent, family court litigants who obtain fee waiver orders, and disabled litigants on public assistance, according to a family court employee whistleblower who provided the information on the condition of anonymity because they could be subject to retaliation for the disclosure. To view a description of retaliation against a previous Sacramento County Superior Court employee whistleblower, click here. 

Court records indicate that both Gary and Arcuri convey socioeconomic bias in performing their employment-related functions and duties. Bias based on socioeconomic status is explicitly prohibited by four separate sections of the California Code of Judicial Ethics [pdf]. Canon 3B(5) requires judges to perform all judicial duties without bias or prejudice, including bias or prejudice based on socioeconomic status. Judges must require staff and court personnel to do the same under Canon 3C(2). A judge must also perform administrative duties - which includes the ministerial duty of accurately drafting and filing court orders - without bias or prejudice based on socioeconomic status, according to Canon 3C(5). 

Governor Arnold Schwarzenegger.

Judge Matthew J. Gary is paid $169,289 per year, and was appointed to the bench by Gov. Arnold Schwarzenegger in 2007. Schwarzenegger was named in the 2010 Worst Governors Report by the government watchdog group Citizens for Responsibility and Ethics in Washington. Among other charges, Schwarzenegger was faulted for providing "state jobs to friends with dubious qualifications." Click here. In a 2007 interview with Sacramento Lawyer magazine, Gary characterized his legal philosophy as "favoring judicial restraint," and said he admired U.S. Supreme Court Justice Antonin Scalia. 

Judge Gary was found guilty in 2010 by San Joaquin County Superior Court Judge Xapuri B. Villapudua of not following proper contempt procedures when he had a disabled litigant arrested and forcibly removed from his courtroom. As SFCN reported in 2011, Gary's wife, Donna Gary provides law firm administrative services and sells a client management software program to family law attorneys. Click here for our exclusive report. In 2011 a controversial ruling issued by Gary was reversed in full by the 3rd District Court of Appeal. In 2012 Gary was involuntarily demoted from his position as the supervising family court judge. Gary is a graduate of El Camino High School in Sacramento and previously worked at his father’s law firm, Gary, Till & Burlingham. His father, Richard Gary, is a family law attorney. Links on the firm's resources page include the Christian Legal Society and the Christian Counseling & Educational Foundation. 
  

Nonexistent Oversight and Accountability by Court Administrators

Supervising Family Court
Judge James M. Mize.

Court watchdogs and whistleblowers point out that the flagrant lawlessness of Judge Matthew Gary's series of orders in the Ferris case, and conduct in other cases is additional evidence that accountability and oversight by court administrators, including Court Executive Officer Christina Volkers, Presiding Judge Laurie Earl, and family court Supervising Judge James Mize is nonexistent in Sacramento County Superior Court. Sacramento Family Court News has reported on multiple instances of misconduct by family court judges and clerks and employees, egregious violations of conflict of interest laws and the preferential treatment of attorneys who also act as temporary judges in family court. 

Court administrators and oversight officials have repeatedly declined to provide information about what corrective measures, if any, have been initiated to address the problems. As state court judges, Mize and Earl are required by state law to take appropriate corrective action when another judge violates state law, court rules, and the state Code of Judicial Ethics. The obligation is a critical self-policing component of judicial ethics standards and ensures that the rule of law is maintained. To view a Judicial Council directive about the duty to take corrective action, and the types of corrective action required, click here. In addition, Judge Gary's unlawful conduct has been witnessed by several court employees, including clerk Christina Arcuri, and bailiff J. Strong. As government employees, each has a legal and ethical duty to report the misconduct. 

2014 UPDATE: Judge Matthew Gary's outrageous treatment of Susan Ferris resulted in a team of attorneys - led by prominent San Francisco trial attorney James Brosnahan of Morrison & Foerster - taking over her case after she filed an appeal in the 3rd District Appellate Court. The Sacramento Bee published a front page story about the appeal on March 26, 2014: 

"This is at the point where a lot of us think it's a disgrace," Brosnahan said. "You can't take someone's child and that person doesn't have an attorney when you do...It's an outrage," Brosnahan explained to Sacramento Bee reporter Brad Branan. 

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