Did Judge Michael Dufficy subvert the election process when he was officially quoted, "The year 2000 was the most unpleasant of my life. Accusations were thrown at us from all directions... It wasn't fun being a target, especially since I knew I didn't do anything improper?"

Or when he said, "I feel totally vindicated. My two opponents ran totally negative campaigns, but I put my record out there and the public saw that these allegations of bias were totally not true. That Winner report was discredited from the beginning and my opponents used it as a bible?"

Or, when he said upon being elected , "The allegations that have been made against me were untrue and not supported by the evidence. I have had a whole cross section of community support and I feel very good?"

If Dufficy didn't do anything wrong then the California Commission On Judicial Performance was wrong in officially, but secretly, or confidentially, disciplining him for misconduct during 2002. He was admonished in response to at least three separate complaints, and possibly more.

On October 7, 2002 almost identical letters were sent to three different persons who had formally complained about Judge Dufficy. All three letters advised that "an appropriate corrective action had been taken."

"Action taken" means that the judge had been privately disciplined or admonished. Censure or Admonishment in an open, public hearing and/or removal from office would be the next two steps in the event there was no voluntary resignation or retirement.

Judicial Commission staff are not permitted to comment on the nature of the discipline, or the complaints, however the judge is free to do so. There are no constraints on those persons who file the complaints, although they often prefer to maintain anonymity for fear of retaliation.

The first letter confirming discipline, involved a divorce case in the late 1990s in which the complaint was basically that Dufficy did not follow the law. Apparently the Judicial Commission agreed.

The exact nature of the charges which resulted in the second letter confirming "corrective action" are not known as this article goes to press, but, whatever they were, the Commission imposed "corrective action" on something, exactly what, we don't know right now.

The original complaint of the third letter confirming discipline involved Dufficy's presiding over a contentious civil case for several years in the late 1990s. The case resulted in a fraud and breach of trust action in which the attorney, who was one of the defendants, was a close personal, social friend and business associate of the judge. Dufficy did not disclose this relationship as required and the Commission agreed in some form that this was improper to the extent that it took "an appropriate corrective action," also know as, discipline.

This complaint never surfaced in the local press along with the other well known complaints about Dufficy, because it was on a separate track, and, not being publicized, it was unknown until it was briefly, but inconsequentially, noted in January 2003 by a reporter in an article the Independent Journal.

Meanwhile, in July 2000, an ad hoc committee of experts, a so-called "Blue Ribbon" committee was proposed by Judge Sutro, who was set to taking over Family Court from Dufficy, to look into procedures and practices of Family Court. The "experts" proposed were several friends of Dufficy, one of whom was a principle in the law firm that was a defendant with Dufficy's other friend referred to in the above "third letter" case. (More about this case in the next issue)

It is inconceivable that the California Judicial Commission, the only organization in the state to judge judges-2,057 of them, including referees-would spend 13 months investigating a complaint and impose "corrective action" on a judge for anything that was not improper, or wrong. The Commission dismissed without actions 95% or the complaints it received in 2002. We have no evidence, or any way of knowing, if the judge was disciplined before 2002 or if others are pending now.

The non-totalitarian imposition of discipline usually requires some form of sincere admission of the wrongdoing to be eliminated or abated by the discipline. Denying any wrongdoing after accepting discipline for wrongdoing negates the entire process.

In repeatedly saying he did not do anything wrong Judge Dufficy appears to have lied repeatedly. If he wishes to clarify, he could stipulate to the Commission to open his disciplinary files to the public or he could publicly make such a request.

The original specific complaint charged regarding the third letter of confirmation was that the undisclosed relationships prejudiced the case and could be considered "willful misconduct in office" and "conduct prejudicial to the administration of justice that brings the judicial office into disrepute." The original letter of complaint said that the nature of the relationship between the judge and the defendant friend was learned from an article in the San Francisco Weekly, October 18, 2000, "Odor, Odor, Odor in the Court."

Actually, on January 23, 2003, a reporter for the Independent Journal questioned Judge Dufficy about the same "corrective action" when Dufficy announced he would seek reelection. (This was a short time after the "corrective action.")

The reporter wrote in the IJ, "The director of the oversight agency, (The Judicial Commission) said there have been no public censures or investigations of Dufficy. (True) She said she cannot confirm private censures (True), which she said can take the form of an advisory letter or private admonishment that can be considered by officials if a judge is being considered for a higher position in the judiciary (True).

The reporter concluded the paragraph, " Dufficy said he is barred from discussing the matter." [Not true]

A spokesperson for the Judicial Commission, knew of no case law restricting the freedom of a Judge subjected to confidential discipline to speak.

The Commission's Web Site lists one case in which the private admonishment of a judge from Riverside County was opened to the public with his agreement, so, there is yet another mechanism to inform the electorate of essential details in an important election.

Judge Dufficy can, quite correctly remain silent, if he wishes, but he is not barred from speaking on any subject. If he has a written order, he can show it. He, like anyone else, can also invoke his Fifth Amendment Right to remain silent. If he says he did nothing wrong and there was no evidence of his wrong doing, when an official investigation was made and he was disciplined, he would then appear to be either in "denial," in the psychological sense, or willfully defiant.

Just what the Commission might do if a judge who had been disciplined, denied he had ever done anything wrong, would depend on the circumstances of a new complaint. The Coastal Post believes, but has no evidence yet, that at least one new complaint is pending

Serious Business

The reader should not make the mistake of underestimating the seriousness of an admonishment by the Judicial Commission, the only agency in the State of California authorized to investigate and discipline judges for violations of their Code of Judicial Ethics. It consists of 11 members, 4 appointed by the Governor, 3 by the Supreme Court, 2 by Speakers of the State Assembly and 2 by the Senate Rules Committee. Definitely not the types of people to be unduly influenced by rabble rousers, malcontents and/or disgruntled losers of Family Court decisions.

The Commission has a staff of 27, all state employees, 16 attorneys and 11 support staff, with a budget of $3,734,000 for the current fiscal year. The committee is slow moving, cautious, extremely reserved and secretive. Staff investigate and evaluate all complaints and, depending on the circumstances, an investigation will take six months to a year. Most complaints are closed out with no action. In a small number of cases, the judges being investigated resign or retire. In those cases in which action is taken, the discipline can be public or private. In Dufficy's cases the discipline was private. The process of administering "discipline" is unknown.

In 2002, the year Dufficy was disciplined, there were 901 complaints of which 870 were closed with no action. three judges resigned and 28, or 3% were disciplined publicly and privately.

In a private disciplinary case, a short, terse letter is sent expressing the commission's appreciation and thanking the complainant, noting that, "The commission has... taken an appropriate corrective action," and that, "Bringing this matter to our attention has served a useful purpose." No further details are given under commission Rule 102(e)

Although details are not made available, one can get a vague impression what was involved from the Commission's Web Site.

The Web Site

In 2002, the Commission imposed private discipline on six judges, one of whom would seemingly have to be Dufficy based upon three letters being sent in 2002 to the persons who were thanked for their complaints. The web site lists six summaries. Judges #1 and #2 and #5 and #6 do not seem to fit well with the known complaints currently available. Judge #1 involved ordering a spouse to court, displaying bias, excessively flattering a witness, making an improper appointment of counsel etc. Judge #2 involved violating parental rights and procedures in juvenile dependency matters etc. Judge #5 involved an angry and profane confrontation and berating court staff. Judge #6 was convicted of a misdemeanor which did not involve moral turpitude. (Moral depravity etc., a vague term usually referring to sex.)

The charges as we know them against Judge #3 below, seem to correspond to Judge Dufficy.

"#3. A judge failed to recuse or to fully disclose information relevant to the question of disqualification. (letter #3) The judge also received improper gifts from attorneys and engaged in off-bench activities that raised an appearance of partiality. (Could refer to the Winner Report) In addition, the judge sent a letter on judicial stationery that did not concern official court business and that detracted from public confidence in the integrity and impartiality of the judiciary (an unusual complaint and a marker for Dufficy)."

#3 above however does not include the following quote of February 27, 2004 issue from the SF Journal, a legal publication. This charge also seems to be a marker for the judge.

"The state Commission on Judicial Performance did privately warn Dufficy to maintain greater social distance from bar members and to disclose to litigants his wife's work as a freelance legal secretary for local law firms."

The Judge referred to below also seems to fit partially, although it does not seem to go far enough.

"#4. A judge failed to disclose a past attorney-client relationship with an attorney appearing before the judge. In aggravation, the judge previously had received an advisory letter for a similar failure to disclose."

With so little transparency in what little investigative process there is, it is difficult to "connect the dots" so the speak, so the "peek" provided by the Web Site, while interesting, tends to excessively mystify and divert one from "the three birds in the hand" to those that might be somewhere "in the bush." We don't know how many complaints were investigated and answered and cannot know unless the judge allows this, which seems unlikely.

This kind of confusing speculation is what concerned citizens will always be reduced to as long as there is an impenetrable iron curtain of secrecy regarding investigations of judicial misconduct.

The FBI Investigation

Much has been made of the alleged FBI investigation into alleged misconduct in the Marin Superior Court. That there was an FBI investigation implied that there was something wrong. That there was no report by the FBI, and no indictment, implied that there was no substance to the allegations. The Federal Police today, do no usually comment on what they are, or aren't, investigating.

The FBI told the Coastal Post, "The FBI does not comment on cases involving public corruption." When asked for a clarification, the spokesperson repeated the same sentence stressing "public corruption."

"You know our comments when we issue indictments". So far, no indictment.

Turmoil In Superior Court

Ever since 1997 when Marin's County Council prevented the Grand Jury, from investigating charges of favoritism and bias in Marin's Family Law division, there has been controversy of one type or another surrounding the operation of our court system-most of it, but not all, centering on Dufficy. At the expiration of the Grand Jury's term Martin Silverman, the Assistant Foreman, joined with a few others in a small group, to look into complaints about the Family Court. The Grand Jury is usually composed of intelligent, conservative, middle aged, upper middle class, white Marinites, something for which it has been criticized as disposing it to being passive and to not "rock the boat." The 1997 Grand Jury, after hearing testimony, voted unanimously to investigate Dufficy's division.

In an apparent attempt to insure that no Grand Jury secrets were misused by a former member, the District Attorney's Office opened a criminal investigation against Silverman, a retired businessman with an impeccable, independent, non activist background. The investigation of Silverman was later taken over by the State Attorney General's Office since the District Attorney's Office, an integral part of the Superior Court system, had an inherent conflict of interest in protecting the reputation of the system.

Here, the preservation of judicial secrecy stopped an investigation of suspected abuse in the Family Law Division. Such an investigation at that time might have spared the system it's long and unpleasant travail which seems far from over.

The effect of this investigation, intended or not, was to create the impression that Silverman was being threatened, or menaced, for intruding into court matters. Seen by many as a "message" to keep quiet, or else! Almost everyone questioned in the preparation of this article says "Don't use my name!"

The Attorney General's investigation is still open today, in 2004 and has yet to be resolved, a situation that is truly Kaffkaesque.

Silverman and others, undeterred, persisted and, stymied by their lack of results, contracted with Karen Winner, a former policy analyst and writer for the New York City Department of Consumer Affairs, and the author of "Divorced From Justice: The Abuse of Women and Children By Divorce Lawyers and Judges," to look into Marin's Family Law Division. Winner's detailed report had a profound effect on everyone associated with Superior Court. It concluded by recommending that Dufficy and others be removed.

There is no known mechanism for Superior Court to investigate the Judges that compose its body, and, as far as is known, the Superior Court never investigated, or examined itself. According to the Court Administrative Officer, "The responsibility for dealing with complaints about Judges is the California Commission on Judicial Performance --- and the electorate," he added, referred to Dufficy's vote count of 58.1% in the March 2004 election.

Odor, Odor, Odor In The Court!

The Winner Report and its criticisms of Dufficy and his subordinates in Family Court should be familiar to most readers by now: favoring certain lawyers, using official court stationary for non court purposes, not revealing his personal and business connections to attorney's appearing before him and the fact that his wife, a legal secretary performed work for, and received payments from, a number of attorneys and law firms at the same time as attorneys for those firms were appearing before the judge.

The most sensational tabloid-esque aspect that emerged in the uproar around the Winner Report was the exclusive outings, or parties, for friends in the county's legal establishment that Dufficy hosted at his ranch in the Sierra-sort of, middle aged fraternity boy, sorority girl parties in which business, legal or otherwise, was discussed. Singing, dancing, drinking, seemingly innocent, and probably a lot of fun, if not dignified, for hard working people. These parties started before Dufficy became a judge and continued long afterwards.

Anyone desiring further information this story, which might easily be serialized for television, is referred to the SF Weekly http://www.sfweekly.com/issues/2000-10-18/feature.html

A Heart Condition

Judge Dufficy resigned from the Family Law Division in May 2000 citing emotional stress aggravating his heart condition and a Court Commissioner who had worked under his supervision resigned. The judge settled into Probate and Civil Court-but the controversy continued and continues

A recall attempt, strenuously opposed by Silverman and his group which paid for the Winner Report, was organized against Dufficy and two other Superior Court Judges. The recall attempt failed after being taken over ("hijacked") by the proponents of legalizing medical marijuana, and a group of genuinely " highly emotional," disgruntled people who felt they had been unfairly treated in Family Court. One member of this group was extremely rude and disruptive at meetings and undoubtedly alienated many people. The focus of the recall shifted away from Dufficy and on to the District Attorney whose office wasn't really involved in the complaints at all. The recall of the DA failed miserably. Some began calling Dufficy "the Teflon judge."

A Tainted Election?

Knowing that he had been disciplined for judicial misconduct or, at least that the Judicial Commission had taken "appropriate actions" regarding complaints about his behavior, the judge continued to deny he had done anything wrong and so he negligently, or deliberately, allowed false statements to be made on his behalf in the March 2004 election which he won with 58% of the vote.

For example, a letter sent by a supporter soliciting funds on his behalf states,

"He presided over the Family Law Department for five years, the most challenging assignment in our Court and was unfairly criticized by some unhappy family law litigants four years ago.

"Unfortunately Judge Dufficy's opponents have repeated the same false and unsubstantiated allegations that were laid to rest long ago... etc. etc."

The judge had to have known that some of the allegations that were made were not laid to rest and that many, if not all, were substantiated, otherwise he would not have been disciplined privately.

One can't blame his supporters for believing that he "hadn't done anything wrong." He betrayed their trust. His list of supporters as published in the Independent Journal is truly awesome. It goes on and on in point 9 type, many of the finest, most successful and distinguished men and women in Marin, if not the Bay Area!

Just looking at this list of supporters lends some credence to the complaints of Kathryn Ballentine Shepherd, an outspoken critic of the Judge who was insulted publicly by the judge's son, who claimed her practice was ruined, that she suffered from discrimination in the courts and felt threatened after speaking out. She now lives on the East Coast.

The judge's campaign mailer lists the support of every Marin County Judge, every retired Marin County Judge, the President and 34 Past Presidents of the County Bar Association, the County Sheriff, the Deputy Sheriff's Association, Deputy District Attorney's, Novato, San Rafael and Twin Cities Police Associations! Extremely impressive although the District Attorney and the County Council were not on the list. (Maybe a story there? Maybe not. Reading tea leaves is also hard.)

His list of political contributors, available at the County Elections Office, is composed, almost in its entirety, of equal numbers of judges and local lawyers, about 35 in each group. Probably no other candidate for office in this county could ever have had such a list.

Does this say something about group behavior? The tendency of a group, or tribe, to unite and protect, without hesitation, a vulnerable member under attack no matter what? Or does it say something else?

In his victory statements, the judge said "I feel completely vindicated... and I feel good. But now, he may have a lot of explaining to do to his friends, and perhaps to the Commission on Judicial Performance.

How Could They Do It?

How could all of the living judges that ever served in the Marin County Courts lend their names and reputations to support a judge that has involved himself and the Superior Court in so much controversy over the past seven years? All judges have to deal with "disgruntled litigants" as well as "highly emotional losers." If the presently sitting judges were not aware of "something in the wind," if they didn't have their own confidential sources of information, something is desperately wrong. They have lent their prestige and the prestige of the court to one of their own who has apparently not been completely honest with them and maybe not even with himself, about being disciplined by higher authority.

It is hard to imagine that in the case of "letter number three" which was in and out of court in Marin and Sonoma counties for at least three years, no other judge or lawyer noticed that Dufficy was officiating in a contentious case in which close friends of his were defendants. The Judicial Code of Ethics requires that a judge report suspected violations by other judges.

This article was written making use of extremely limited powers of investigation which produced a modest, but hopefully convincing, amount of evidence of Judge Dufficy's past unacknowledged sanctioned misconduct. The tiny amount of evidence here might well be dwarfed by what may exists with the Judicial Commission which is, rightly or wrongly unavailable by law without, apparently, the Judge's permission to release it.

The court has a duty to examine itself. It can do it in secret if it wishes, but it might need to do something akin to invasive brain surgery, heart surgery and a face lift all at the same time. It will be difficult, and it may not be possible, but, if nothing is done here, someone will eventually do it from somewhere else.

How Was It Done?

One wonders how all the judges were approached, and by whom, to gain their support? What were they told and what did they agreed to, if anything? If an IJ reporter knew in 2003 of Judge Dufficy's disciplinary action by the Commission, if a reporter for the SF Journal, a legal publication, knew of another disciplinary action by the Commission, it strains the mind to the point of headache, to imagine that no one in the hierarchy of brilliant, perceptive minds at the Hall of Justice knew that "something was going on." Could it perhaps be the perception that if a "private discipline" is not made public, it can be considered safely "laid to rest' and that it never happened?

There are parallels here to the problems that are affecting the Roman Catholic Church, another ancient institution with a revered, respected black robed priesthood. How to protect the institution and effectively discipline offenders in secret. It seems fair to say that secrecy works, in the medium term, but only when innocent victims pay the price. The victims of abuse are frequently angry, suspicious, vindictive, upset, disturbed and disturbing, and often inarticulate and very hard to listen to. They need to be listened to because they often have important things to tell us.

It Seems Odd

The abrupt resignation of Judge McGivern also seems odd and therefore a source of concern. His sudden resignation brought about a reduction in the number of opponents Judge Dufficy faced. From the IJ report of McGivern's last day it appears that he was distressed and that his "resignation" might have been pressured.

It is also a disgrace that McGivern's alleged Alzheimer's Disease, which can only be diagnosed by medical experts, was leaked to the press through the disability hearings of his Court Reporter.

It seems that one can learn of one judges alleged mental status, but not of another's disciplinary record. One is guarded like state secrets, the other flaunted publicly in newspaper articles. McGivern's privacy and confidentiality were grievously violated and he doesn't seem to care. It also seems odd that McGivern made the largest contribution on record to the Dufficy's reelection fund

It is hard to be hard on all the retired judges, except to calmly and respectfully say, in a low voice that they ought to perhaps be a little more careful in making political recommendations. Maybe judges shouldn't make recommendations. Unanimous support seems suspect in any case.

The Final Insult

On Sunday, March 14, 2004 the judge gave his thanks to the 34,000 people who voted for him in a letter to the Independent Journal:

"The reelection campaign allowed me to place before the voters my 14-year record as a Marin County judge. My two opponents based their campaigns on the same false and unsubstantiated allegations of bias and favoritism contained in the old and widely discredited Karen Winner Report, complaints emanating from a small but vocal minority of litigants and lawyers unhappy with my rulings in child custody and divorce cases, and information from self-appointed court critics, each with his or her own peculiar agenda....

"My opponents even criticized my wife for alleged conflicts of interest in her paralegal practice without any evidence whatsoever to support their claims... both my wife and I feel totally vindicated. I look forward to my third term on the Superior Court.. as a knowledgeable, experienced and fair judge."

Footnotes:

As I said above, just about every person who had not openly criticized Judge Dufficy asked that their names not be used. The victim whose complaint about Dufficy's "not following the law" resulted in the first letter acknowledging that "an appropriate action" had been taken, said the complaint was made many years ago, but it still was bothersome, especially after the election. There were interviews, one with two men who tape recorded everything.

I was asked to swear that I would not to reveal anything about who made the complaint. "I don't want to lose my job."

I said I would.

"No, say it."

I said I just said it!

"No, say on the telephone-I swear that I will not reveal the name of the person who made the complaint."

I said it.