Third District Court of Appeal:
Justice, Ideology & Conflicts of Interest
|A Sacramento Family Court News investigation indicates that ideology and undisclosed conflicts of interest play a significant role in the outcome of appeals in the Third District Court of Appeal.|
An Exclusive Sacramento Family Court News InvestigationThis ongoing investigative project was updated in October, 2015.
Sacramento Family Court News is conducting an ongoing investigation of published and unpublished 3rd District Court of Appeal decisions in trial court cases originating from family courts. This page is regularly updated with our latest news, analysis, and opinion. Our preliminary findings reveal an unsettling link between how an appeal is decided and the political ideology, work history, and family law bar ties of the court of appeal judges assigned to the appeal.
Our investigation indicates that the outcome of an appeal is in large part dependent on the luck of the justice draw and the undisclosed connections between the trial court judge whose order is appealed, the trial and appellate court attorneys, and the judges assigned to resolve the appeal.
The collusive atmosphere falls hardest on unrepresented or "pro per" appeal parties who can't afford to hire a local appellate attorney. 3rd District appeal outcome statistical data reveals a virtually perfect record of success for attorneys in cases where the opposing party is a pro per. Appeals taken by pro per litigants rarely, if ever, succeed.
Court records, statistical sampling of family court appeals, appellate court docket entries, litigant interviews and anecdotal evidence indicate that the court conveys hostility - if not outright contempt - for financially disadvantaged parties who cannot afford counsel. Many financially disadvantaged litigants who attempt appeals in the 3rd District also are disabled.
In addition, a separate SFCN investigation has uncovered evidence that both trial and appellate court judges, part-time judges, and court employees deliberately obstruct appeals by indigent, unrepresented parties. Appeal data from the Third District reveals that most pro per appeals are never decided on the merits and are instead dismissed on legal technicalities, which often are caused by the deliberate acts of government employees.
Court whistleblowers assert and have documented that the family law division of Sacramento Superior Court and the 3rd District Court of Appeal effectively operate as a RICO racketeering enterprise that deprives the public of the federally protected right to honest government services.
The alleged federal crimes also include the misuse or conversion of federal funds received by the courts, predicate acts of mail or wire fraud, and predicate state law crimes, including obstruction of justice, child abduction, and receipt of illegal emoluments, gratuities or rewards by judicial officers (Penal Code § 94). To read our complete report on the allegations click here.
The 2014 documentary film Divorce Corp, designated Sacramento County as the most corrupt family court in the United States. The movie is now available on Netflix. Court watchdogs contend that the scale and scope of the corruption rivals the Kids for Cash scandal in Luzerne County, Pennsylvania, which also became a documentary film.
Third District Court of Appeal cases are assigned to three of ten judges. The background of each judge appears to be a critical factor in how an appeal is decided.
|3rd District Court of Appeal watchdogs assert that appeal |
outcomes are inconsistent, and in large part determined by
the work history, and social or professional connections
of the three judges assigned to decide an appeal.
Friends in Low Places
For example, 3rd District unpublished opinions show that Court of Appeal justices who were elevated to the appellate court from Sacramento County Superior Court will often effectively cover for judicial errors in appeals from the same court.
Third District Justices George Nicholson, Harry E. Hull, Jr., Ronald B. Robie, and Presiding Justice Vance W. Raye previously were trial court judges in Sacramento County Superior Court.
Each have personal, social, or professional ties to family court judges and attorney members of the Sacramento County Bar Association Family Law Section. After his retirement in 2011, 3rd District Presiding Justice Arthur Scotland described the professional and personal relationships he had with attorneys during his career on the bench.
"[I] enjoy friendships...I go to all the county bar events. I do that for two reasons. One, I think it's a responsibility of a judge to be active in the community, and the attorneys appreciate it. But I really like the people. I really like going to these events. I enjoy friendships and that sort of thing." Click here to view Scotland's statement.Sacramento Lawyer, the monthly magazine of the Sacramento County Bar Association each month publishes accounts of recent social, educational and charitable events sponsored by the association, its 17 specialty law sections - including the family law section - and its eight local affiliates, including the Asian/Pacific Bar Association, and Women Lawyers of Sacramento. Most are well attended by a mix of state and federal judges, court administrators, supervisors and employees, and lawyers.
To get a sense of the collusive atmosphere in Sacramento Family Law Court, we recommend reading our special Color of Law series of investigative reports, which document the preferential treatment provided by family court employees and judges to SCBA Family Law Section lawyers at the trial court level. Click here to view the Color of Law series. Financially disadvantaged, unrepresented litigants who face opposing parties represented by SCBA attorneys assert that the collusive collegiality taints appeal proceedings in the appellate court.
Pro per advocates contend that under Canon 3E(4)(a) and (c) of the Code of Judicial Ethics, Raye, Robie, Hull and Nicholson should disqualify themselves from participating in any appeal originating from Sacramento Family Law Court. Advocates argue that the same conflict of interest principles apply to family court appeals that resulted in the self-recusal, or removal, of Vance Raye from participating in the 2002 Commission on Judicial Performance prosecution of family court Judge Peter McBrien. To view the 2002 Raye recusal and CJP decision against McBrien, click here. The CJP has disciplined judges for violating the Code of Judicial Ethics rules requiring judges to disclose conflicts. Click here for examples of CJP conflict of interest disciplinary decisions.
It is a basic principle of law that state appellate justices and federal judges with personal or professional relationships with trial court judges connected to an appeal or federal court action should disqualify themselves to avoid the appearance of partiality. Click here to view a recent order issued by a federal judge disqualifying the entire bench of the Fresno Division of the US District Court for the Eastern District of California due to personal and professional relationships with local state court judges.
The conflict disclosure problem infects the Superior Court as well. To the benefit of local family law attorneys who also hold the office of temporary judge in the same court, Sacramento Family Law Court judges effectively have institutionalized noncompliance with state conflict of interest disclosure laws. Click here. For an example of a Sacramento County civil court trial judge who fully complied with conflict laws, click here. Without oversight or accountability, family court judges routinely - and in violation of state law - ignore the same disclosure requirements.
History & Origins of the Current Sacramento County Family Court System
|Tani Cantil Sakauye worked with Peter J. McBrien|
in Sacramento County Superior Court from 1997-2005.
In 1991, as a superior court judge, current 3rd District Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance.
Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure. The public court system was built to the specifications of private-sector attorneys from the SCBA Family Law Section Family Law Executive Committee, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view the same, current day collusion, click here.
The 1991 restructuring plan began with a road trip suggested by the family law bar:
"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up some ideas about how their courts were structured. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family court system in 1991. As reported by the Daily Journal legal newspaper McBrien dishonestly implied that the system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts. The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid trip with McBrien and the late Judge William Ridgeway.
"[M]cBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time, there were continual postponements of trials. 'This is how we came up with the system today,' McBrien said. 'It was the best trip Sacramento County ever paid for.' The judges changed the local system so that family law judges presided over both law and motion matters and trials..." the Daily Journal reported. Click here to view.Under oath, McBrien admitted that the private-sector, for-profit family law bar dictated the public court facility restructuring plan - conceived to serve the needs and objectives of SCBA Family Law Section member attorneys - which then essentially was rubber-stamped by the bench.
"[T]he Bar culled through the various ideas and options, came up with a plan, presented it to the family law bench. We made what adjustments we felt were appropriate and then presented the whole of it to the full bench," and the plan was approved. Click here to view.In essence, McBrien disclosed that the current public court system was set up by and for local attorneys with little, if any, consideration of the needs of the 70 percent of court users unable to afford counsel. The system also has shown it is designed to repel carpetbagger, outsider attorneys, like Stephen R. Gianelli of San Francisco, and Sharon Huddle of Roseville. Click here and here.
"[T]his is a 'juice court' in which counsel outside Sacramento have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to out-of-town counsel," Gianelli said.According to the Commission on Judicial Performance - the state agency responsible for oversight and accountability of California judges - the structure is known as a "two-track system of justice."
"In this case, we again confront the vice inherent in a two-track system of justice, where favored treatment is afforded friends and other favored few, and which is easily recognized as 'corruption at the core of our system of impartial equal justice, and...intolerable," the CJP said in a 2005 judicial discipline decision involving a Santa Clara County judge. To view a list of similar CJP decisions, click here.According to the gold standard reference on judicial ethics, the California Judicial Conduct Handbook [pdf], published by the California Judges Association, providing preferential treatment to local, connected attorneys also is known as "hometowning," and is prohibited by the Code of Judicial Ethics. To view this section of the Handbook, click here.
Keeping Neutral Judges Out-of-the-Loop
|Justice Ronald Robie performs in the "Judge's Choir" for the|
Sacramento County Bar Association Family Law Section
"The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling," the Daily Journal reported.Family court watchdogs and whistleblowers allege that under the system set up by Raye and McBrien, the local family law bar - through the Family Law Executive Committee or FLEC - now controls for the financial gain of members virtually all aspects of court operations, including local court rules. A cartel of local family law attorneys receive preferential treatment from family court judges and appellate court justices because the lawyers are members of the Sacramento Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program, court reform advocates charge.
Court watchdogs have catalogued and documented examples of judge pro tem attorney favoritism, and flagrant bias against unrepresented litigants and "outsider" attorneys. Click here for a list of watchdog claims. Published and unpublished 3rd District opinions indicate that Court of Appeal justices without direct ties to the same superior court are more likely to follow the law, and less likely to whitewash trial court mistakes.
One of these things is not like the others, One of these things just doesn't belong,
Can you tell which thing is not like the others, By the time I finish my song?
Third District Court of Appeal Justices Ronald B. Robie, Harry E. Hull Jr., George Nicholson and Cole Blease.
Only Blease (R) has no past connection to Sacramento County Superior Court.
A fourth outsider jurist, Sixth District Court of Appeal Presiding Justice Conrad L. Rushing subsequently characterized McBrien's conduct in the Carlsson case as a "judicial reign of terror." In addition to ordering a full reversal and new trial, the 3rd District decision subjected McBrien to a second disciplinary action by the state Commission on Judicial Performance.
The judge's first go-round with the CJP stemmed from McBrien's 2000 arrest for felony vandalism under Penal Code § 594 in connection with the destruction of public-owned trees - valued at more than $20,000 - at the Effie Yeaw Nature Center in Ancil Hoffman Park, Carmichael, California. McBrien had the trees cut to improve the view from his home on a bluff above the park. Click here for the 2001 Sacramento News and Review coverage of the case. Click here to view the original summons charging McBrien with felony vandalism. Click here to view the report of Sacramento County District Attorney's Office Criminal Investigator Craig W. Tourte detailing the complete investigation of McBrien's crime, posted online for the first time exclusively by SFCN.
Less than 48 hours after the judge was charged with the felony, McBrien negotiated a plea bargain, pleading no contest to a misdemeanor violation of Penal Code § 384a, paying restitution of $20,000, and a fine of $500. The improved view increased the value of the judge's home by at least $100,000, according to a local real estate agent, and the sweetheart deal outraged the Ancil Hoffman Park personnel who originally discovered the butchered trees and conducted the initial investigation. McBrien's subsequent 2009 sworn testimony before the CJP recounting his criminal case starkly contradicted Tourte's report and the truth about his criminal conviction.
In the documentary film Divorce Corp, Ulf Carlsson describes egregious misconduct by Sacramento Family Law Court Judge Peter McBrien. Using misleading sworn testimony about McBrien's reversal rate in the appellate court, 3rd District Court of Appeal Presiding Justice Arthur G. Scotland effectively saved McBrien from being removed from the bench by the Commission on Judicial Performance.
Presiding Justice Arthur G. Scotland Intervenes in McBrien CJP Prosecution
|Tani Cantil-Sakauye, Arthur Scotland, George Nicholson and |
Peter McBrien all worked for former California Attorney General
and Governor George Deukmejian. All were appointed to the
Sacramento County bench by Deukmejian.
Among other slight-of-hand tricks, Scotland devised a clever artifice to make it appear to the CJP judges assigned to decide McBrien's fate that the trial court judge had a much lower than average rate of reversal in the court of appeal.
Scotland's 2009 testimony on McBrien's behalf also was controversial and may itself have violated the Code of Judicial Ethics. A critical self-policing component of the Code, Canon 3D(1) requires judges who have reliable information that another judge has violated any provision of the Code take "appropriate corrective action, which may include reporting the violation to the appropriate authority." Click here to view Canon 3D(1). Click here to view a Judicial Council directive about the duty to take corrective action, and the types of corrective action required.
While under oath before the CJP, Scotland verified that he was aware of McBrien's misconduct in the Carlsson case. Scotland essentially defied the self-policing Canon and, in effect, the published Carlsson opinion authored by his co-workers Butz, Blease and Sims, and instead testified in support of McBrien at the CJP. In it's final decision allowing McBrien to remain on the bench, the CJP specifically cited Scotland's testimony as a mitigating factor that reduced McBrien's punishment. Click here. An examination of Scotland's career in government - funded by the taxpayers of California - provides insight into the tactics, motives, and questionable ethics behind his unusual involvement in the McBrien matter.
By his own admission, Scotland's career in the Judicial Branch of government was the result of connections and preferential treatment. The former justice candidly recited his life history in a nearly three-hour interview for the California Appellate Court Legacy Project in 2011. Like other gratuitous "tough-on-crime" conservative ideologues from a law enforcement background who rose to power in the 1980's, Scotland apparently lived the cliche of being born on third base and going through life thinking he hit a triple. His interest in law developed when he worked as an undercover narcotics agent for the state Department of Justice.
"[I] bluffed my way through the interview, and I got hired as a narcotics agent in 1969...I was an undercover narcotics agent. I've bought a lot of dope in my life...all lawfully, but I've bought a lot of dope," Scotland said. "And I testified in court. And that's what got me fascinated in the legal process...and it got me involved in the law." Click here to view.
|Arthur Scotland used a family connection to get into |
a law school with liberal admission standards.
"[I] thought, I want to be a prosecutor. I'm going to go to law school; I want to be a prosecutor. So I applied in 1971. I applied to only one school: University of the Pacific, McGeorge School of Law...[M]y grades weren't all that great. I did very well on the LSAT test: I did excellent on that. But I didn't figure I could get accepted anywhere else, 'cause I really hadn't been a serious student. So I went to University of Pacific, McGeorge School of Law," Scotland explained.
"I didn't know [McGeorge Dean Gordon D. Schaber], but my dad did. And my dad had done some life insurance, estate planning work for McGeorge. And again, my dad was an influence on my life because he knew people and he set me up with jobs. And I'm sure that one of the reasons I got selected for McGeorge School of Law is my dad's relationship with the dean." Click here to view.After graduation, but before he was licensed to practice law, Scotland nonetheless practiced law while employed as a deputy district attorney for Sacramento County. In the outside world, the unauthorized practice of law is a crime. But in Scotland's protective law enforcement bubble, "laws" are only enforced against drug addicts and the unwashed masses. As Scotland explained in his own words, laws are actually only "rules" when a sworn peace officer breaks one.
"Actually, before I even got sworn in in the bar, I was assigned out to juvenile hall and we prosecuted...I prosecuted cases without any supervision - you know, against...really against the rules...we were trying cases without any supervision." Click here.In McGregor v. State Bar, the seminal case on the unauthorized practice of law, the California Supreme Court explained why a nonlicensed person is prohibited from exercising the special powers and privileges of a lawyer.
"The right to practice law not only presupposes in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust. It is manifest that the powers and privileges derived from it may not with propriety be delegated to or exercised by a nonlicensed person." Click here.25 years after he obtained his license to practice law, Justice Arthur G. Scotland exploited the implied integrity of his court of appeal office and exercised his special privilege in a way that to many Sacramento Family Court litigants was a manifest violation of the public trust.
|To help his old friend Pete McBrien keep his job, Justice Arthur G. Scotland concocted a clever plan intended to deceive the judges deciding McBrien's punishment at the Commission on Judicial Performance.|
While testifying for McBrien, Scotland also revealed that his appearance on the troubled judge's behalf effectively was voluntary. Before subpoenaing Scotland to testify, McBrien's defense attorney confirmed that Scotland would not object to the subpoena. Click here. Judicial ethics Canon 2B restricts use of the prestige of judicial office to advance the personal interests of the judge or others. Canon 2B(2)(a) permits a judge to testify as a character witness only when subpoenaed.
The transcript of Scotland's testimony also showed that - to prepare his CJP testimony - the presiding justice of the 3rd District affirmatively and voluntarily took the initiative (presumably on his own time) to research 3rd District family court appeals where McBrien was the trial court judge. His objective was to show the CJP that McBrien had a low reversal rate in the appellate court.
"I also, by the way -- when you called me to ask if I would object to being Subpoenaed as a witness, and I said no, I did research. I looked up -- I knew what this was all about, so I researched the number of appeals from cases from Judge McBrien's court. And so I -- and I looked -- I read all the opinions in which he was reversed in full or in part...
I've known Judge McBrien for 32 years. I got to know, then, Deputy Attorney General Pete McBrien. When I left the Sacramento County District Attorney's Office and went to work for the California Attorney General's Office, he was already a Deputy Attorney General there. So I got to know him there, mainly professionally. Socially to a relatively minor extent. We had -- we had two co-ed softball teams. He played on one; I played on another. Of course, we would attend office functions together. His -- one of his very best friends was my supervisor in the Attorney General's Office. So, on occasion -- not frequently, but on occasion we would attend social events with others from the office....
[McBrien had] seven reversals in whole or in part, out of 110 appeals, which is about 6%, which actually is a remarkably good reversal rate. Because our average reversal rate in civil cases is 20 to 25 percent." Scotland testified at pages 549-553 of the reporter's transcript. Click here.Scotland's claim that McBrien had a "remarkably good reversal rate" was, at best, a half-truth. Under the legal and ethical standards applicable to lawyers and judges, a half-truth is the same as a "false statement of fact" or what the general public refers to as a lie. Click here.
What Scotland withheld from the CJP is the fact that the vast majority of appeals from family court are never decided on the merits. Unlike appeals from civil cases, most family court appeals are taken by unrepresented parties who fail to navigate the complexities of appellate procedure and never make it past the preliminary stages of an appeal. In other words, Scotland rigged his statistics. While McBrien may have had seven reversals out of 110 appeals filed, only a small portion of the 110 appeals filed were actually decided on the merits.
Scotland then made a disingenuous, self-serving apples-to-oranges comparison between the reversal rate in civil case appeals - where both sides are usually represented by an attorney, or team of attorneys, and appeals are decided on the merits - with the reversal rate in family court cases, where neither qualifier is true. SFCN currently is conducting an audit of 3rd District family court appeals, and will have more on this subject in the near future.
Blame the Victim
In a final act of both flagrant cronyism to his friend and former Department of Justice co-worker Pete McBrien, and disrespect to the work of his fellow 3rd District Court of Appeal Justices Kathleen Butz, Cole Blease and Rick Sims whose published opinion in the Carlsson case resulted in McBrien's prosecution by the CJP, Scotland had the balls to suggest that disciplining McBrien for his conduct in Carlsson would be a "miscarriage of justice," that would allow "incompetent attorneys to run the court instead of competent judges."
"And you haven't asked me this question, but if [McBrien] were, for some reason, to be found to have violated the canons of judicial ethics, or whatever, I frankly -- I know about these cases; I know about the Carlsson case. I think it would be a miscarriage of justice. I think it would send the wrong signal to judges and practitioners that you don't allow -- that you would be allowing incompetent attorneys to run the court instead of competent judges," Scotland testified at the CJP.Like Scotland, 6th District Court of Appeal Presiding Justice Conrad Rushing knew well the Carlsson case, which he said "developed a certain notoriety." Unlike Scotland, Rushing wasn't an old friend and coworker of McBrien who would disingenuously suggest the blame for McBrien's "reign of terror" lay with an incompetent attorney. Scotland's colleagues at the 3rd District, Butz, Blease and Sims reversed and remanded the Carlsson case for retrial based on extremely rare, reversible per se, egregious structural and constitutional error by Judge McBrien. After carefully scrutinizing the trial court record, the panel made no mention of attorney "incompetence" in their published opinion.
|Contrary to the explicit findings by his colleagues at the 3rd District |
Court of Appeal, in his deceptive CJP testimony Justice Arthur
Scotland blamed attorney Sharon Huddle for the egregious
misconduct of his old friend, Judge Peter McBrien.
However, Scotland's incompetence assertion to the CJP did, coincidentally, perfectly dovetail with the carefully crafted defense McBrien's legal team presented during three days of CJP testimony to the three-judge CJP panel assigned to decide McBrien's fate.
A key component of McBrien's defense relied on suspiciously consistent witness testimony portraying Ulf Carlsson's attorney Sharon Huddle as incompetent and effectively provoking McBrien's multiple violations of the Code of Judicial Ethics. CJP prosecutor Andrew Blum mocked the risible defense in a confidential court reporter transcript leaked to SFCN. Click here to view the transcript.
Ironically, the time-tested, repugnant but effective blame the victim strategy, was coldly aided and abetted by Scotland, a justice who rose to power with the backing and endorsements of victims rights groups including Crime Victims United of California, and the Doris Tate Crime Victims Bureau. To help McBrien's defense team, Scotland dusted off the dog-eared playbook of exploiting victims, one way or another, to advance his personal agenda.
Scotland's irony-infused blame the victim testimony, misleading appeal reversal data, and the weight of character witness testimony from a sitting Court of Appeal presiding justice, along with similar character testimony from Sacramento County Superior Court Judges James Mize, Thomas Cecil (currently Of Counsel at the family, family law firm Cecil & Cianci) , Michael Garcia and Robert Hight, and Sacramento County Bar Association Family Law Section attorneys and judge pro tems Camille Hemmer, Jerry Guthrie, Robert O'Hair and Russell Carlson all tipped the scale just enough to enable McBrien to keep his job. Click here to view the complete, 12-page CJP summary of the McBrien character witness testimony.
Despite the parade of former law enforcement co-workers, friends, and family court judge pro tem cronies McBrien marshaled on his behalf, two of the voting CJP members saw through the ruse and dissented from the decision to let the judge remain on the bench, stating they would have removed McBrien from office. Click here. When he referred to McBrien's conduct in the Carlsson case as a "judicial reign of terror," 6th District Justice Rushing also noted that "two of the nine participating members [voted] to remove him from the bench." Click here.
The Carlsson case is prominently featured in Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States." The production team for the film conducted a nationwide search for the most egregious examples of family court corruption and collusion, and four Sacramento County cases are included in the movie. Narrated by Dr. Drew Pinsky, Divorce Corp opened in theaters in major U.S. cities on January 9, 2014. Following the theatrical run, the documentary will be released on DVD, RedBox, Netflix, broadcast and cable TV. Click here for our continuing coverage of Divorce Corp. To view trailers for the movie on YouTube, click here.
Rehabilitation FAILThe near-career death experience apparently has had no discernible corrective effect on the ethically-challenged judge. In subsequent proceedings in his courtroom involving the judge pro tem attorneys (and lawyers at the same firms as the judge pro tems) whose CJP testimony effectively saved his $170,00 per year job, McBrien reportedly has never disclosed to opposing parties and attorneys the potential conflict of interest as required by Canon 3E(2) of the Code of Judicial Ethics. The failure to disclose the potential conflict is a violation of the canon and other state laws, according to the CJP, Judicial Council, and California Judges Association. For the exclusive SFCN report on conflict of interest law, click here.
Justice George Nicholson & the Law Enforcement Blue Code of Silence
|Third District Court of Appeal Associate Justice George Nicholson |
rode to the bench on a "law and order" agenda.
In addition, unpublished Third District Court of Appeal decisions indicate that justices who come from a law enforcement background appear to take to the bench with them the "Blue Code of Silence" culture often found in law enforcement agencies. 3rd District Associate Justice George Nicholson worked as a prosecuting attorney for more than 15 years before being appointed to the bench in Sacramento County. The first time Governor George Deukmejian submitted Nicolson's name to the bar for review as a judge in 1983, he was rated as "not qualified," according to the Sacramento Bee.
"George Nicholson, Republican candidate for attorney general in 1982, has been pursuing all manner of public legal positions: U.S. District Court judge, California Superior Court judge, U.S. Attorney, public defender in Riverside County. The other day, when Gov. George Deukmejian appointed him a Sacramento Municipal Court judge, he finally got one. It's an appointment that ought to cause serious concern both within the State Bar and in the community. When Deukmejian submitted Nicholson's name to the bar for review on a possible appointment to the Superior Court in 1983, he was rated 'not qualified.' The bar now ranks him 'qualified', the lowest acceptable rating of three the bar can give.
No one can be certain precisely why Nicholson received such low ratings, but there is enough in his public record to raise serious questions about his temperament and judgment. In 1979, he left a job as director of the District Attorneys Association after an audit showed that the organization's finances had been badly mismanaged and that it was on the verge of bankruptcy. Later, as a senior assistant attorney general, he was twice admonished by superiors for promoting a ballot measure in ways that could be mistaken as an official state Justice Department endorsement of the measure. More recently, a federally funded $4 million 'National School Safety Center' affiliated with Pepperdine University that he directed was embroiled in an extended controversy during which 18 of 30 staff members either resigned or were fired.
The U.S. General Accounting Office, which conducted an audit into the management of the Pepperdine program and into how the federal money was being spent, cleared the center of fiscal irregularities, attributing the problems to Nicholson's 'combative' personality and management style. But because of those problems, Pepperdine named a new executive director, who, the auditors said, restored stability to the management of the program 'while retaining Nicholson's creative talents,'" the Sacramento Bee said in 1987. Click here.Nicholson subsequently was elected to both Sacramento County Superior Court and the 3rd District Court of Appeal with backing from law enforcement, Crime Victims United and other Astroturf "victims rights" and "law and order" groups. Crime Victims United is funded by - and acts essentially as a subsidiary of - the California Correctional Peace Officers Association, the controversial prison guard union.
A principal architect of Proposition 8 the "The Crime Victims' Bill of Rights", after a failed run as the GOP candidate for attorney general Nicholson rode an anti-Rose Bird, tough-on-crime platform to the bench. Over several decades, Associate Justice Nicholson played a significant role in giving the United States one of the highest per capita rates of incarceration in the world. Thanks to Nicholson, the prison guard union, and Astroturf "victims rights" groups bankrolled by the union, California now spends a significantly larger portion of the state budget on corrections than on higher education.
Role of Political Ideology
|3rd District Court of Appeal watchdogs assert that|
Justice George Nicholson is ethically-challenged,
and not particularly qualified to speak on the subject.
Under Nicholson's leadership, 20 of the original 30 staff members who set up the Center resigned or were dismissed. The Associated Press reported that that the debacle was rooted in ideological conflicts between Nicholson and staff whom Nicholson perceived as too liberal. According to the AP coverage:
"Several [staffers] described Nicholson as a political conservative who mistrusted his mostly liberal staff members, argued with them unceasingly about the direction of projects, and accused them of disloyalty when they questioned his ideas.
'When it became obvious to him he attracted a number of us with a different political philosophy, we were not permitted to do our work,' said Shirley Ruge, a former principal of schools for delinquent children and one of those dismissed. 'We were considered troublemakers and he wanted to shut us up.'"Nicholson and former 3rd District Presiding Justice Arthur Scotland have been close friends and colleagues for more than 30 years. For the California Appellate Court Legacy Project Nicholson conducted an almost three-hour interview with Scotland on December 8, 2011. The transcript of the interaction reads like a meeting of the Nicholson-Scotland mutual admiration society. Nicholson opened the interview detailing the joint work history of the BFFs.
"George Nicholson: We are here with retired Presiding Justice Arthur G. Scotland, who served on the Court of Appeal, Third Appellate District, for more than 20 years, from 1989 to 2011, and that...the last dozen of which he was the Administrative Presiding Justice. I'm George Nicholson, Justice of the Court of Appeal, Third Appellate District, and I had the pleasure of serving with Presiding Justice Scotland for 20 years on this court. Before that, we served together as trial judges on the Sacramento Superior Court, and even before that we served together in the Governor's Office during the Deukmejian administration and in the California Department of Justice. This has been a long time coming, Scotty, hasn't it?Arthur Scotland: Nick, it has, and it's a delight for me to have you interview me for this project."Click here to view the full interview transcript.
"Judgment Roll" Standard of Review Hits Hardest Indigent and Low-Income Litigants
In addition, the Third District Court of Appeal in Sacramento applies a unique and previously rarely used "judgment roll" standard of review that in virtually every case where applied results in affirmance of trial court rulings. Appeals brought by self-represented indigent and low-income litigants make up the vast majority of appeals where the 3rd District applies the judgment roll standard of review. Although the appellate court has authored dozens of decisions invoking the draconian standard against family court litigants, it has managed to keep the assembly line, boilerplate process under the radar. The court has not published a single judgment roll appeal originating from family court. Click here to see a list of unpublished 3rd District opinions archived by Google Scholar. The judgment roll summary affirmance process helps the court maintain its title as the most efficient Court of Appeal in the state. Equal protection of the law is implicated because other appellate court districts do not apply the standard nearly as often as the Third District. Equal application of the law is a foundational attribute of American Democracy.
Justices of the Third District Court of Appeal in Sacramento:Vance W. Raye, Administrative Presiding Justice.
William Murray Jr.
Harry Hull Jr.
Andrea Lynn Hoch
For additional Sacramento Family Court News reporting on the Court of Appeal for the Third Appellate District, click here.
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