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August, 2004

Judging Judges-Trouble Ahead
By Jim Scanlon

Lawyers with the most experience practicing in Marin county rated judges Sutro and Duryee below average in judicial performance according to a scientific survey commissioned by the Marin County Women Lawyers Association (MCWL). Duryee, Sutro and Dufficy, in that order, scored lowest with regard to judicial bias, meaning bias in relation to gender, disability, race/ethnicity.

Duryee was rated by far the lowest in regard to court proceedings, i.e. conducting trials fairly and not exhibiting overt bias towards plaintiffs or defense. Divorce Court Judge Vernon F. Smith was rated almost equally low, but not as low as Duryee. Judges Heubach and Goldfine rated highest in this regard. Commissioner Mary Grove and Judge O'Malley-Taylor were rated average and Michael Dufficy a little below average.

Overall, the survey rated the judges highest to lowest, as follows, Goldfine, Heubach, O'Malley-Taylor and Grove about tied, Smith, Dufficy and Duryee

The survey, a detailed 45 page document, analyzed Marin county lawyer responses to the performances of eight Superior Court judges and 3 commissioners. One judge, Verna Adams, was inadvertently left off. The survey did not include recently appointed commissioners, retired judges or part time judges. No Criminal Court judges were evaluated.

Responses were anonymous. (Could they have been otherwise?) Questionnaires were sent to private addresses and not workplace addresses to avoid the potential for workplace pressures to respond, or not respond.

A total of 851 surveys were sent out, of which 14 were undeliverable and 13 were returned because the respondents' practice did not require court appearances. A total of 132 usable surveys were returned, a rate of 15.5%, considered about average or better than average for surveys of this type and somewhat higher than the 11.7% rate of a similar survey conducted in San Francisco in 1998. The SF survey response rate at that time was deemed, "unusually high" according to UC Statistician Linda L. Remy, Ph.D., University Professor, lecturer, author, screen writer and producer who performed the mathematical analysis on the Marin survey. No correlation was found between gender and the type of response.

An attempt was made to compare this survey with one conducted by the Marin County Bar Association but the Bar Association was not cooperative.

"Judges Fume"

The survey was released to local corporate newspapers on July 12, 2004. On July 20th, the Marin IJ published an account, "Judges fume over survey by women lawyers. Court workers blast critique" by Nancy Nation who wrote that the survey "stirred a hornet's nest" in the legal community and quoted the head of the bar association calling it an "unscientific hatchet job." Judge Duryee was quoted saying it appears politically motivated as did Superior Court Administrator John Montgomery who suggested the survey should be called "Misjudging the judges."

The IJ compared the new survey unfavorably with a survey by the Bar Association done in 1999 which had a return rate of 25% compared to 15.5%. There was no mention that the compilers of the recent survey were unable to obtain the 1999 survey from the Bar Association for analysis. They were not refused, two appointments were made and not kept. They were stood up.

More Fuming

Two articles on the survey were published by the Daily Journal, a legal newspaper in San Francisco, one on July 20, the other the 21st. The first severely criticized the survey and defended Duryee, Sutro and Dufficy i.e. the ones with the lowest ratings. The second contained information that tended to defended the survey. The criticisms implied that Nancy McCarthy, a well known Marin County attorney and community health care activist, was conspiring to damage Duryee and Sutro both of whose terms of office are expiring this year. The implication being that McCarthy might run.

The SF legal journal quoted Dr. Linda Remy, a long time resident of Marin and health care activist, the author of the survey: "Something like this is always going to be controversial" and noted that she had insisted that the report be sent to the judges involved before being released, which it was. Only John Montgomery, the Superior Court Administrator, (presumably with knowledge and approval of all the judges) responded to the advanced copy of the survey, and his comments were included in the final report.

The SF journal quoted judge Duryee: "I always suspected it was politically motivated, given the timing of the survey." Duryee was also quoted saying that McCarthy had recently tried a civil suit in her courtroom in which McCarthy had represented herself while suing a client. Duryee acknowledged that she did rule against McCarthy on some issues during the suit, which the parties settled. But she added, "Everyone gets ruled against eventually in this business."

Judicial Coercion?

Not mentioned in the three articles cited above, is a letter dated April 8, 2004 to the Presiding Judge of the Superior Court, Terrence Boren* (Re: Appearance of Improper Conduct Among Judiciary) regarding "A disturbing event in early February 2004" and requesting that he, Boren, investigate. McCarthy, writing as Chairperson of the Judicial Survey Committee wrote that after the survey was finalized in February, the co-president of MCWL received a telephone call from judge Duryee's husband, an attorney, who said among other things, that publication of the judicial survey "would drive a wedge between the MCWL and the Judiciary".

McCarthy wrote that "... his statements may be inappropriate and were interpreted by some as a threat of retaliation by Judge Duryee. She also wrote, "We have also since heard that judge Duryee sent an e-mail to certain members of the local Bar indicating a hostile position toward the MCWL Board in connection with the survey."

(*Boren received no rating because so few lawyers, rated him that the small number was statistically insignificant and any rating would be invalid. There was no explanation as to why Marin County Lawyers responding anonymously, would not rate a Presiding Judge: i.e. "fear factor? See Lawyers Comments below.)

Trouble Ahead For Judges?

From the information released so far, the survey was ready for release in February, but withheld. i.e. until after Judge Dufficy's contested election. Because Dufficy rated low, it would certainly have been seen as politically motivated and as aiding Dufficy's two opponents, both of whom do not practice before the Marin County Courts. (Coastal Post April and May "Did Judge Dufficy Lie and Deceive the Voters? Parts I and II.)

After Dufficy's election, there was evidently serious disagreement among the Women Lawyers group over releasing the survey. The other two judges who rated low, Duryee and Sutro, are up for election later this year and if the survey was withheld for one, what about the other two? Was the contention because the survey was incomplete, inaccurate or because it was offensive, upsetting and perhaps dangerous?

On April 8, 2004 McCarthy complains of a perceived threat. May and June pass and on July 12, 2004 the survey is formally released. On July 20th the IJ and the Daily Journal publish criticism, "Judges Fume..." and "Bench Survey Called Unfair." The following day the Journal prints, "Group's President Defends Judicial Survey". Both papers fail to mention the specific complaint to judge Boren dated April 2004. It looks like Marin County lawyers are restive, but not quite in revolt --- at least not yet --- and two incumbents may have a bitter struggle to protect their seats on their judges bench in the center of local power, the Marin County Hall of Justice.

Lawyers' Comments

The survey includes in Appendix C, personal comments concerning judges, which, having been made anonymously, have to be viewed with great caution. In any event, they will no doubt be read avidly by everyone connected with the courts. Most of the personal comments about judges were negative. The high ranking judges Goldfine received no comments, and the second highest, Heubach received one highly positive and one dismissive short comment. The only comment received by Judge Sutro seemed authentically Daytime TV justice, "[He] disparaged me and basically told my client that if she did not take a settlement, she was "crazy."

The general comments about the Marin Court seem more apt and believable and to reflect long standing criticisms by court reform advocates. For example:

"All judges put moving cases ahead of justice."

"In general, the family law division of the court is incestuous and the judges give far too much deference and bias to attorneys with whom they have prior relationships. Overall the Marin branch is FAR below other counties where I have practiced."

"It is unfortunate that the bench in Marin is so controlling. They control the local bar association, with the members of that Board fearful to say or do anything that might conceivably alienate the judges. Justice and truth take a back seat to sucking up. The speech given by the last [Bar Association] president, where he said that the mission of the local bar should be to support local judges "right or wrong" shocked everyone in the room. Having an independent judiciary is one thing, allowing courtroom wrongs or bias and not policing your own is another."

"Marin is like some Southern backwater county where you need a local (in-county) counsel if you practice law two counties down the road."

"Whenever there is any criticism, the judges say: 'It is the disgruntled litigants'. True those who lose are distressed. The question is: did they lose fair and square or were they unfairly treated by a judge who showed bias. Lumping those categories together denigrates and devalues those with valid "fairness and equal treatment" claims and wipes out those legitimate claims. Sadly the judges and newspapers do not distinguish between the two."

"It is easy to discriminate in subtle ways. One bad ruling on a discovery matter guts your case, denies you the ability to win, and you have no recourse until appeal since taking a writ is costly and almost always a waste of time due to the impossible legal standard. This type of thing happens when a judge dislikes you, wants to settle the case so decides to gut your claims as a "settlement tool," or when he/she doesn't want to bother with discovery disputes -which is often the case."

"I am a family law attorney. I have practiced in almost all the Bay Area counties in front of at least 20 different judges. I have never had a problem with a single judge other than Marin ... I have never felt the need to appeal a decision except for decisions made in this county."

"The law applied here seems to be [the] "law of the jungle" i.e. how well you do in court depends on how well connected you are. Statutory and case law is often ignored altogether. Factual findings make no sense. As a result a lawyer cannot advise a client what to expect, based on the law and the particular facts of the case, because the facts an the law often make no difference."

"Most disturbing is a general sense that the judges believe they can do anything they want in a case with virtual impunity. The average litigant does not have the funds to appeal an adverse ruling. Lawyers do not want to risk the bench's wrath by challenging an adverse ruling. As a result there is little respect for the bench. The bona fide "practice of law" has become extremely difficult and frustrating."

"While few attorneys are speaking out against the family law system for fear of retaliation, many are doing whatever they can to stay out of the system or otherwise cope. Some very fine attorneys are throwing in the towel altogether. Some are taking extended sabbaticals. Some are simply quitting family law and leaving. Some have been forced out. Some are mediating, utilizing collaborative law, or hiring private judges-anything to stay our of Marin Family Court. Some are appealing bad rulings. Some are reporting to the FBI. Some try to ignore what's happening and hope that tomorrow will be their day to get a fair and logical ruling, or at least that the damage to their clients won't be too bad. Others curry favor with the court and revel in being a court favorite."

A copy of the report can be obtained by writing MCWL PO Box 4314 San Rafael CA 94913-4314, enclosing a check for $20 for copying and mailing. For information on the Marin County Women Lawyers Association call 453 5345.



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