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May, 2004

Did Judge Dufficy Deceive The Voters?
Tainted Case, Tainted Election
By Jim Scanlon

In all trial court proceedings, a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification. California Code of Judicial Ethics, Canon 3 E.

In last month's issue, the Coastal Post pieced together scraps of evidence that demonstrate the extent to which our democratic system of justice is disconnected from reality, in that a judge like Superior Court Judge Michael Dufficy can be officially disciplined repeatedly for misconduct and still maintain that he did nothing wrong, that there was no evidence for the complaints made against him, and that the victims of his judicial misconduct are all disgruntled litigants, emotional losers in Family Court or opponents with a personal agenda.

Since all records relating to investigations by the California Commission on Judicial Performance (CJP) are secret, except for a small number in which the worst offenders are disciplined in public, it is difficult, although not impossible, to reconstruct complaints, and what they are about.

Of the three instances in which documentary evidence of discipline is known to exist, we do not know the exact wording of the first. In the second, the original complaint letter is not available but was recollected as, "the judge did not follow the law." Only with the third document announcing discipline do we have the exact wording of the original complaint. The third involved a local family, let us say, the X family, and there is a six volume file with the county and a box of documents weighing approximately 50 lb. on file with the State Court of Appeals in San Francisco. These documents are open to the public.

There have been many other charges concerning Dufficy's behavior over the past several years. At least three Bay Area newspapers have mentioned other notices of discipline by the CJP. The judge himself has alluded to changes that he and his wife have voluntarily made, which appear to be attempts to satisfy complaints made against him, but without any indication that he might be conforming to warnings from the Judicial Commission. These well known criticisms are not discussed in this article.

There has never been an accounting of these charges, let alone an investigation open to the public by anyone, therefore, the charges really haven't gone away despite the judge's claim just before the election in March, "... the past [has] been hashed out enough" and his campaign literature which claimed that the charges against him were "laid to rest long ago."

The charges against Dufficy's have never been "hashed out publicly." He and his supporters have simply denied all the charges. To be sure, no criminal charges have ever been filed, or even considered, as far as is known, but judges are supposedly accountable to a higher standard of conduct than the criminal code, because of the exalted nature of their positions.

It seems fair to say that in most cases, our judges live up to, and far exceed public expectations. Even where there are complaints, of those investigated by the California Commission on Judicial Performance, over 95% are closed without any action. Only a very small number of judges are subjected to private discipline, and a smaller number yet are publicly disciplined, or removed from office.

The disconnect with reality is that Dufficy has been disciplined privately several times by the CJP, but maintains, he has always acted ethically. So, is the judge disconnected? Or is it the California Commission on Judicial Performance that is disconnected?

The public documents relating to the X family are instructive in the light they throw on the one case in which we have the original complaint and confirmation from the Judicial Commission that "an appropriate action was taken" in regard to it.

It costs $6.00 to get a County Superior Court file out of storage and $1.00 for each page copied. The cost is $36.00 for an Appeals Court File and .25 per copy. It takes about a week to get either file from storage. The Marin County Clerk's Office is a busy place to read a file and is sometimes hectic; the Appeals Court Clerk's Office is peaceful, quiet and elegant. Both County and State staff are very friendly, polite and helpful.

The nature of the dispute within the X family should unfortunately sound familiar to most people. A man and a woman set up a trust fund for their two children with insurance proceeds and a home. The value of the trust is relatively modest, around a million dollars. The mother dies and the trust is changed somewhat. The father remarries and the trust is changed again. The father and the second wife separate for several months and contemplate divorce. Michael Dufficy is the father's divorce attorney. The husband and his second wife reconcile.

Years pass and the father dies. The adult children and their step mother disagree on settling the trust. The dispute is tried in Marin Superior Court and a ruling made. The case goes to the Appeals Court which changes the ruling which seems to be accepted.

But then there is more disagreement. The stepmother feels she was misled and deserved more. Maybe she was, maybe she wasn't. She hires a San Francisco attorney who petitions the court for an accounting of the distribution of the trust. Dufficy is now a judge and hears the case. For some reason the case is assigned to Dufficy and not the judge who originally tried the case. He does not reveal that the opposing attorney is a close friend and business associate. He also does not reveal that he was the divorce attorney for the deceased Mr. X. (He would be presumed to have knowledge of the parties appearing before him.) He rules in favor of his friend and then-goes a little further-in declaring the request for accounting "frivolous." He orders attorneys' fees paid to his friend's side. The ruling is not appealable.

Frustrated at the ruling, the San Francisco attorney, totally ignorant of the relationship between the "referee" so to speak, and the "opposing team," starts to appear like a "disgruntled litigant." The matter escalates. He tries an "end run" and files (or does he try to re-file his original petition?) a "fraud and breach of trust" petition in Sonoma County because, as he claims later, "l ... lost faith in the Marin County Court." Now, not only is Dufficy's attorney friend involved as an attorney, but he is also named as a defendant, along with his law associate, also a friend of Dufficy.

The San Francisco attorney is stymied in Sonoma and the case is sent back to Marin to Dufficy. He tries to get the judge to remove himself when he learns of his having represented the deceased father in divorce proceedings with his client, the second wife. Dufficy refuses. The briefs go back and forth, the files grow, pages filled with text, sub text, footnotes, italics and citations, words like Res Judicata and Collateral Estoppel appear often.

The attorney from the city can't seem to understand that "the playing field is not level" and complains about Dufficy to the CJP for "lying from the bench" and for allegedly changing a court transcript. (Apparently the CJP did not act on these charges.) His complaints about Dufficy are used against him by the opposing attorneys and are even mentioned in the Appeals Court ruling which goes against him. The Appeals Court's Principal Attorney rebukes him in writing. for "... the impropriety of your writing"

In his brief to the Appeals Court, the San Francisco attorney calls Dufficy "a dishonest judge." He still, after four years of hearings, can't get over the fact that Dufficy denied a petition for accounting. "... what kind of judge would find a petition for accounting frivolous?" He is a Stanford Law School graduate and trusts are his business. An expert witness, his brother is a Harvard Law School graduate, a trust expert for the largest bank in the US, who has handled thousands of trusts! They both can't understand the denial.

In retrospect, this San Francisco attorney has become a kind of crusader for justice on a single minded mission to defeat a "wrong" in spite of opposition from everyone else in the judicial system. His zeal for justice seems to leads him close to fanaticism. The Appeals Court Justices (all Deukmejian appointees like Dufficy) seem to regard him as a "crackpot." He does not, however, go outside the system.

Would the Appeals Court justices have acted differently had they known of Dufficy's undisclosed friendships and business connections with the opposing attorneys defendants?

He presents newspaper articles about Dufficy's problems with other "disgruntled litigants." He complains about Dufficy's failed attempt to award $11,000 in attorneys' fees to the opposing side. (Not knowing yet they are friend's of Dufficy.)

The poor guy never "got it." He was utterly defeated. Not at all like crusading lawyers on TV or in the movies! The Appeals Court slams him and refuses to publish its opinion for others to see. The 50 lb. file now sits dead in its box like a poisoned mummy waiting to be unraveled.

Reading through the X Case is like watching an Alfred Hitchcock suspense movie in which the observer in the audience knows everything that is happening while the poor guy in the film doesn't know anything. Dufficy had special knowledge. So did the attorney defendant friends. The SF attorney was the one who did not know the plot. Regardless of who may have been right or wrong, legally speaking, the judge's lack of disclosure turned the adversary system of justice into a farce that others were forced to play in even after he left the stage.

Two months after the final appeal , the SF attorney reads in an article in the SF Weekly, "Odor, Odor, Odor in the Court", that judge Dufficy was "best friends" and had business connections with one of the opposing defendant attorney. (He may not even know today about the other one). At last he "gets it." The case was tainted, poisoned from day one! Was he really a "disgruntled litigant?" Yes he certainly was. Did he have a right to be?

CJP staff attorneys took 13 months to investigate the SF attorney's complaint before thanking him and informing him that "an appropriate corrective action" had been taken. That's was it.

Why did it take 13 months to investigate if the judge failed to declare. He had direct or indirect control of the X case for three years. Was he the judge? Was the attorney for the respondent a friend? Was he a business associate? Did he reveal the relationship? Case closed! Verdict: misconduct! Why take 13 months?

The misconduct was repeated every time the judge entered the courtroom, every time he ruled, every time he conferred with anyone. Repeated behavior over time is of a different magnitude and importance than a single instance. Were there other cases in which the judge presided in which his attorney friend or friends participated, in which he did not declare potential conflicts? Did these friends ever receive special appointments? Where does "cronyism" end and a "conspiracy" begin?

One of the "whistleblowers" in the scandal that preceded the failed attempt to recall the judge, swore in a deposition, to overhearing in mid summer 1998 one of the attorney defendant friends of the judge say words to the following general effect, while relaxing on vacation in the Sierra near the judge's ranch:

"We got some good news ... You know that fraud case? We got it assigned to Mike [Dufficy]."

Unfortunately this kind of hearsay information, however interesting, is virtually useless in an ordinary investigation. Only in the hands of an investigator, or prosecutor, with coercive powers to compel testimony from reluctant or resistant witnesses, is this kind of information useful. It seems highly unlikely that such an investigation can, or will, ever take place. There is no way of knowing.

Just two months after the CJP took "an appropriate action," in regard to the X case complaint and two others, Dufficy announces he will run for office again, telling the IJ that he "...had always acted ethically ... but opted to make some changes to deflect any further criticism," adding magnanimously, "It is easy to understand how people can form negative opinions about a judge in the all-powerful family law post, particularly if things went against them in court."

No wonder the San Francisco attorney refused to discuss this case with the Coastal Post and asked that his client not be contacted. "I lost," he said, "There's nothing I can do." He seemed to have reached some kind of "closure," but didn't seem too happy about it.

But what about the X family case? Might it not be reopened? That seems unlikely. Whatever issues there were, were settled with the Appeals Court ruling. There is no "fruit of the poisoned tree" tradition with civil cases as there is with criminal matters. That is, say, if a policeman gathers evidence without a warrant, that evidence is "poisoned", tainted, and can not be used. Judges can misbehave and that doesn't affect the case.

One can't help wondering however, if there was ever anything unusual behind the long and bitter struggle to resist an accounting of the X family trust fund. One also wonders what both sides of the X family paid in legal fees.

What about the election? Was the election also tainted or poisoned by Judge Dufficy's deceptive statements about the reality of the complaints made against him? After all our judges ask juries to ignore statements made in front of them, to ignore evidence presented in court, they issue gag rules forbidding disclosures, decide issues and take testimony in secret, out of view and hearing of obedient, passive juror. They compartmentalize.

As long as the Judicial Committee does not go public with charges and discipline, or effectively hold disciplined judges to some kind of standard for acknowledging misconduct, why not say that nothing happened? One victim of Judge Dufficy's misconduct wrote a letter to the Marin Independent Journal in February, before the 2004 election that Dufficy won with 58% of the votes.

The victim wrote, " ... your front page article that quotes Judge Dufficy as saying he may have 'a perception of impropriety' is an untrue statement. He did have improprieties and was given 'appropriate corrective action' by the Commission on Judicial Performance. Judge Dufficy was untruthful in your article and I hope you do further investigation and report on it accurately"

The victim's name was on the letter with the request that the name and address not be revealed "Because I believe it would be detrimental [to me]". The Independent Journal did not publish the letter.

Would an average man or woman agree that Judge Dufficy should not have presided over the X case? Might not the voters who cast their ballots for the judge have acted differently had they known more about his disciplinary record?

Rule 102 Confidentiality and Disclosure

(a) ... Nothing in this rule prohibits the respondent judge or anyone other than a commission member or member of commission staff from making statements regarding the judge's conduct underlying a complaint or proceeding.

 

 

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