It is common knowledge among investigative reporters, the California Bureau of State Auditors (BSA) and various court reform groups that California’s Judicial Branch has some rather serious ethics problems occurring in its courtrooms and in its court ethics policing agencies. In a 2015 Report by Center for Public Integrity, polled-investigative journalists from across the country gave California’s Judicial Branch an “F” for transparency and accountability. The primary root causes which have aided this to continue for far too long, seem to be four-fold:

1.) The state’s judicial watchdog agency, the Commission on Judicial Performance (CJP) is suppose to police judicial ethics. Yet it rarely punishes for judicial misconduct and nearly never punishes for case-fixing. Case-fixing is the practice of causing litigation outcomes to favor one party and/or their attorney over the other; with judicial decision being founded not on facts  in evidence and not in accordance with rules of law.

2.) With little fear of punishment for unethical conduct, judicial appointments are for a lifetime if incumbent judges can intimidate, bully, character assassinate and effectively scare-off anyone and everyone from running against them at election times. No challengers for judicial seats means the judges are automatically “elected” and “re-elected by the voters” every six years without their names even appearing on the ballot.

3.) The public is rarely made aware of which judges have had complaints lodged against them for ethics breaches. Even if someone dares to challenge for their seats which causes the judges’ names appear on ballots, the public doesn’t know if and why some judges should be voted out. It practically takes billboards plastered all over town for the public to be informed of an incumbent judge’s unethical record.

4.) As an example of too much problematic politics in California’s courts, currently in San Diego there are multiple criminal defense attorneys who have teamed up with multiple incumbent San Diego judges to keep two newly appointed judges in office (and discourage all judicial challengers in the future). They are jointly soliciting funds. The  fundraising attorneys and beneficiary judges will be jointly-faced with outsider opposing counsels in future court proceedings. The mutually beneficial situation of attorneys coming before judges they helped to remain in office (at nearly $200k p/year)  is likely to cause more systemic “hometowning” while CJP-unchecked-case-fixing continues to occur. Hometowning is the practice of giving attorneys known to the judge, unfair advantage.  It’s a slippery slope that can cause a judge to aid the wrong party to win a litigation.

 

California Judiciary’s Toothless Watchdog

There is grossly lacking transparency and oversight by the state’s judicial policing agency, CJP. On May 7, 2016 the San Francisco Chronicle published an article titled “California Judiciary’s Toothless Watchdog“.   Authors Joe Sweeney and Tamir Sukkary write:

“The Commission on Judicial Performance is a little-known agency that has one of the most important jobs in California — to protect the public by investigating complaints against judges and disciplining misconduct. The commission is effectively responsible for maintaining the integrity of California’s courts. Such an important watchdog should be transparent about its operations and should have enough teeth to deter misconduct. But its practices and discipline statistics indicate that it does neither…..In response to a public records request from First Amendment Coalition, a nonprofit that has greatly improved Californians’ access to government records, the panel [CJP] refused to disclose complaints or even the number of complaints filed by judge or by county. Its practices also prevent the public from being an informed electorate, its foremost duty….The commission withholds information about misconduct from voters that may impact an election…. The commission’s mandate is to protect the public, but its policies are contrary to that mandate. The lifelong impact of legal rulings and the effect of case law on the public are too important to risk a sleeping watchdog over the largest court system in the country.”

On March 28, 2016, there was a meeting before the California Assembly Budget – Public Safety Subcommittee in Sacramento. Ms. Victoria Henley, CJP Director-Chief Counsel was seeking more public funds for the state agency. Their current budget is approximately $4,343,000 per year.

The room was literally packed with concerned citizens and attorneys. They provided testimony to the legislators of why the CJP should receive no more funds until they start doing the job they are mandated to do by the California Constitution, which is to protect the public from inept and compromised judges.

At the meeting, Ms. Henley stated that there are typically around 1,300 complaints lodged against California judges every year. She said that in 2015,  41% of those complaints were in criminal cases, 22% were in civil cases, 16% were in family courts and 9% were in traffic and small claims courts. One may view the March 28th meeting in its entirety in the link below.

Various media outlets have also raised concerns. According to the April 11, 2016 Los Angeles Times article by Greg Moran,  “California watchdog agency dismissed 90% of complaints about judges’ conduct “

“in 2015 [CJP] has concluded reviews of 1,231 complaints about how judges conducted themselves…The commission imposed some kind of discipline in 41 cases: 26 in which a non-public advisory letter was sent to the judge, 11 in which a judge received a private admonishment, and four in which a judge was publicly disciplined.”

These statistics shed light on the minute percentage of complaints about problems in the courts which are taken seriously by the CJP.  To put it into perspective, out of 1,231 complaints, 41 (3% – 3 out of every 100) resulted in not-publicly-disclosed slaps on the wrist by the CJP; or the ability for a judge to retire with full pension, no public knowledge of what triggered the early retirement, and no supporting evidence provided to the harmed party for seeking correction of damages caused. Four (only .3% – 3 out of every 1000) of the complaints were made known to the public. Only 1 (.08% – 1 out of 1,231) resulted in involuntary removal from office.

What these statistics also show is that not a single one of the admonishments made publicly-known in 2015 addressed harm to the public and litigants by judicial case-fixing.  Yet harm caused by judicial case-fixing with the CJP turning a blind eye, was the overwhelming No. 1 complaint that was heard by the Assembly Budget Committee members on March 28, 2016.  (See video above for citizens’ complaints to the California legislature about the wrecked-lives from unpunished judicial misconduct)

Below is the testimony of Marin County attorney, Barbara Kaufman. She effectively explained the problems caused for citizens who get caught in bad judges’ courts, when the CJP refuses to punish for judicial case-fixing.  She, like many others, is calling for a BSA audit of the CJP.

The four (I see five ) 2015 CJP public admonishments had nothing to do with the public’s complaints of damages from cases being fixed or any intent from the CJP to help rectify damages from judicially fixed-cases. They  were for things such as:

1. sexually inappropriate conduct with court employees and misstatement of fact to the CJP (Judge Saucedo);

2. concealment of monies due to an ex-spouse (Judge Trice) — this judge claims the CJP was used to retaliate against him because of politics in the San Luis Obispo County Courts;

3. improper aiding of a fellow-cigar-smoking-felony-booked-spousal-abuser’s early release from jail (Judge Petrucelli);

4. concealment of financial interest in county-funded “indigent defense contracts” with attorneys who appeared before him (Judge Garcia); and

5. threatening supervisor clerks that “before they would allow court administration to move courtroom clerks around, the judges ‘would get together and fire’ the court executive officer” (Judge Fielder).

As I understand it, of the five public admonishments only Judge Saucedo was involuntarily removed from the bench. One may read of judicial removals from office going back to 1988 on the CJP website.

 

Know the History to Understand the Present

Except for one matter in the San Diego courts in the early-mid 90’s, it appears that no California judge has ever been removed from office by the CJP for case-fixing and was prosecuted for it in criminal court.  Case-fixing is not only unethical, it is a federal offense which betrays public trust and harms litigant-victims, sometimes destroying lives.

The San Diego case-fixings which resulted in jail time for judges in the early-mid 90’s, involved multiple San Diego Superior Court judges. Two, Judge James Malkus and Judge G. Dennis Adams, were sentenced to jail for mail fraud, conspiracy, and racketeering (RICO). A third, Judge Michael Greer, pleaded guilty to accepting bribes from a San Diego attorney in exchange for favorable rulings. He turned state’s evidence and was allowed to avoid jail plus keep his judicial pension. Too feeble for jail time, Judge Greer began working as a court mediator. It is unknown to this writer what happened to the victims of the numerous cases he fixed.  In the February 7, 1997 LA Times article titled “Ex-Judge Sentenced in San Diego Bribery Case” the author Tony Perry wrote,

“Assistant U.S. Atty. Phillip L.B. Halpern said Greer’s testimony ‘revealed the dirty little secrets that had plagued this town for a long time.”

The CJP’s history of reluctance to admonish for judicial case-fixing and the secrecy that shrouds it, is best described in a 1997 article by former CJP investigator, John Plotz, Esq.  Mr. Plotz was retaliated against by Ms. Henley for telling what he knew of the brearch of ethics in the CJP aiding judicial misconduct, statewide. Titled “Small Town Boys, Is Judicial Corruption Just Business As Usual in San Diego?” his article details the peculiar relationship between San Diego’s bench and bar. It describes the wall of silence and people fearful to talk. This and a quirky sense of right and wrong was what Mr. Plotz was faced with when attempting to thwart the resultant hometowning and racketeering.  Mr. Plotz wrote:

Now that San Diego judges James A. Malkus and G. Dennis Adams stand convicted of mail fraud and conspiracy to racketeer, and former Judge Michael Greer has pleaded guilty on bribery charges, local myth-makers are describing them as “a few rotten apples”. The rest of the bench is fine. “All of this happened seven or eight years ago” said Presiding Judge William Howait, “and we’ve moved far beyond that…there’s just this image of misbehavior.”

The local bar is just as clean. As the President of the San Diego County Bar Association said after the verdicts, “I don’t think there was ever the problem to the extent that the public perceived it, because there was one and only one attorney involved.” That was attorney Patrick R. Frega, who according to the local myth, single-handedly corrupted the bench.

A different view is possible. I used to work for the Commission on Judicial Performance…..

I was sent to investigate allegations that a number of San Diego judges had received generous gifts from lawyers. Were the allegations true? Sure.  It was a matter of public record. Judges reported expensive golf dates, health club memberships, dinners and banquets…(Later we discovered more — but so much was known to everyone.)

No harm in that I was told.  The local bench and bar had always enjoyed a close relationship…what could be more natural than lawyers inviting their former colleagues, now elevated to the bench to friendly harbor cruises, the Super Bowl or weekend condiminium…Did the gift-givers appear in court before the gift-takers? You bet.  And not only did the appear, but the did very nicely, thank you….Was there a relationship between the gifts and the rulings?  The question is naive. When a judge accepts gifts from lawyers there is no need for a payoff in any particular case.  The parties have established a climate of mutual esteem and of mutual help that rises about mere payoffs….

I do say that the corruption of Greer, Adams and Malkus flourished in the soil of San Diego. Their corruption was not a strange anomaly – a rare bad apple – but the natural outgrowth of the San Diego judicial ethic….There was a smugness among the San Diego judicial elite, an oozing complacency that encouraged corruption. The judges defined a moral order by their own small measure, mistaking their private wishes and interests for the interests of the citizens they were suppose to serve.  Lawyers flattered them and gave them gifts.  All was right in the world.  

The self-satisfaction was so preposterous that it might have seemed comical to an outsider like me.  But I did not find it comical.  It created an atmosphere where self-deceit and lies grew in profusion….When I interviewed clerks and junior lawyers – the little people who had to breathe that atmosphere every day — they told me of fear – fear of retribution if they told what they really knew.  I heard the same from some judges who were not in the inner circle.

Greer and others were not merely crooks and liars, they were bullies.  And they had the weight of the legal establishment behind them, both bench and bar…. When a union official gives a judge $300 in an envelope they call it “graft”.  When a silver-haired senior partner gives a judge $300 in free legal services they call it “professional courtesy”.  But friends, remember these are our courts and our judges. So let’s not fool ourselves or allow others to fool us.  Graft is graft.  And San Diego, that small town – that small clean town – has enough to go around.

As further evidence that the judicial ethics problems still exist in the San Diego courts, in 2013 a RICO lawsuit was brought by the California Coalition for Families and Children (CCFC). Several San Diego judges, San Diego Bar affiliates, the City Attorney, CJP members/staff and other San Diego and California government entities are named co-defendants.

The families are seeking damages for collusion to defraud under the color of law, retaliation for whistleblowing of highly-profitable ethics problems in the local courts and the CJP turning a blind eye — while aiding the judicial misconduct to continue to harm those who must go before San Diego family court judges.

An opinion is scheduled to be rendered in the Ninth District Federal Appellate Court within the next two months.  Oral arguments that were scheduled for early May, were pulled off calendar and the opinion is expected out after the primary elections in early June. Divorce Corp, Inc. was intending to film the oral arguments.

 

2016 San Diego Judicial Elections & the “Black-Robed Wall”

On May 5, 2016, San Diego Free Press published an expose’ titled, “Superior Court Judges Adverse to Open Seat Contests“. The author, Doug Porter, writes:

“There is, I believe, a black-robed wall around the local bench. They take care of their own when it comes to politics. The whole business of fundraising for judicial election campaigns gets hinky, especially when considering the bloodlines and marriages abounding in the court system….This simple article on judicial races is one of the toughest I’ve ever had to write. No lawyer in his/her right mind wants to be quoted in an article about judges….Keri Greer Katz, Incumbent…has a long political pedigree in San Diego. Her father, Judge Michael Greer was at the heart of a scandal back a few decades. Her husband is Judge Aaron Katz….Another potentially open seat was filled by a miraculously timed retirement (Judge Alvin Green on Friday afternoon, January 24 [2014]) followed by the immediate appointment  (January 28) of Keri Greer Katz.  Had the retirement been announced on Monday rather than Friday, this would have been an open seat.”

Just like in 2014, in  2016 there are no opens seats in San Diego judicial races. Those that have come open since the last election cycle have all been filled by appointment by the Governor.  There are 40 San Diego sitting judges running for their first voter election or for re-election.  Only two will appear on the ballot because they have challengers: Judge Keri Greer Katz (seat 38) and Judge James Mangione (seat 25). Mangione was appointed to the bench in November of 2015. He is being challenged by Paul Ware, a Marine judge. Greer Katz is being challenged by Carla Keehn, a federal prosecutor.

According to Francine Busby, Chair of the San Diego Democrat Party, “Judge Katz has risen from intern to Assistant City Attorney while gaining extensive litigation background in both state and federal courts. Also, she has been a Superior Court Commissioner and Judge for the past 10 years.” According to her campaign website, Greer-Katz

“is an instructor of proper demeanor and bias prevention to hundreds of attorneys who wish to qualify as temporary judges. Additionally, Judge Katz just concluded her term as President of the San Diego County Judges Association. She is also a life-long resident of San Diego County….Judge Katz received her undergraduate degree from UCLA and law degree from California Western School of Law.” She is endorsed by virtually every politician and judge in San Diego County.

Her judicial-seat-challenger Keehn is a cum laude graduate of Princeton who received her law degree from University of California, Hastings College of the Law. According to the San Diego Free Press article,

“Keehn has a long history in law and public service, on both sides of the courtroom. She’s been an Army Judge Advocate General Officer, a public defender, an environmental attorney, and has worked in the US Attorney’s Office in San Diego as a federal prosecutor since 1995. She has worked on cases ranging from drug smuggling to assault on infants, but she says her current position, as coordinator for the Federal Diversion program, is one of the most fulfilling things she has ever done.

A pilot program for rehabilitating of nonviolent federal offenders, the Federal Diversion program has been remarkably successful in San Diego. 500 people have gone through it, kicking their drug habits and gaining the life and job skills they need to be productive members of society. 80% of graduates are employed by the end of one year. And only 3 in 100 people have relapsed into crime. The program Keehn oversees saves taxpayers huge sums of money, costing 10% of what it costs to imprison someone.”

In 2014, Keehn ran for San Diego Superior Court Seat 20 against incumbent Judge Lisa Schall, who had been a local judge for 28 years. It was an ugly display of the San Diego sitting judges and local politicians circling the wagons for an incumbent judge. Judges were lobbying Ms. Keehn’s endorsement base to not endorse or un-endorse her. (See March 2014 COMPLAINT to Presiding Judge Danielson).

Several news outlets wrote of the collective lack of judicial ethics, abuse of judicial influence and systematic bullying:  March 6, 2014 California Courts Monitor “Judicial Intimidation On Display in San Diego”; February 28, 2014 San Diego Free Press “Thou Shalt Not Challenge A Sitting Judge”; February 21, 2014 San Diego Union Tribune “Judge Candidate Feels Gaveled Down”.

The matter culminated with Keehn’s campaign billboards being mysteriously taken down, shortly after they were erected — even though they had been edited and approved by Clear Channel prior to erection. To this day, no one is willing to tell who ordered the take-down.

Incumbent Judge Schall, who “No jurist in the state has a less favorable record” won the race with 58% of the vote. She had the endorsement of the San Diego Union Tribune. Similar to Greer Katz, the entire cadre’ of San Diego Superior Court judges and most of the same local politicians endorsed incumbent Schall. [the below video plays by first clicking on the arrow and then clicking on “Clear Channel pulls local ad” in the top left hand corner]

 

San Diego Criminal Defense Attorneys Raise Funds (and Eyebrows) with Local Judges

On April 25, 2016 there was a campaign fundraiser for Judges Greer-Katz and Mangione.  It was sponsored by 15 incumbent judges and 21 others.

Eight of the incumbent fundraisers are currently running themselves for “voter election and/or re-election”.  Unlike Judge Greer Katz, Judge Mangione, Ms. Keehn or Mr. Ware, these eight do not need campaign funding to help inform the voters that they are the most honest, ethical and knowledgable candidate for the office of judge.  This is because they are running unopposed with their “elections/re-elections” being automatic. If they can collectively scare off any challengers for their judicial seats in the future, they’ll never need to go through a true voter re-election.

Of the 21 other incumbent-judge-campaign fundsraisers, 20 appear to be criminal defense attorney who practice before the sitting judges in their San Diego courts.  One can read who they are here: Katz Mangione campaign fundraising sponsors

 

Reason for Concerns

Contributions are made everyday to political campaigns. As the Citizens United scandal has helped to bring to light, there is a nationwide concern of how these contributions impact polices, practices and decisions in the United States.  While not illegal or unethical to support certain candidates — who contributes and causes others to contribute to certain elections serves as an indicator of how the elected will fulfill their duties. The popularity of both Sanders and Trump shows that the people are sick and tired of status quo, special interests determining elected governmental positions.

In San Diego, there is a criminal history of collusive case-fixing, a continued peculiar relationship between the bench and bar, multiple generational-matrimonial family ties among the judges, and a judicial ethics watchdog that is toothless.  As such, would it be logical to assume that some of the criminal defense lawyers will be expecting return favors if Greer Katz, Mangione, and the other incumbent judges remain on the bench for a lifetime by aid of the lawyers’ money-raising efforts?

What about from Greer Katz’s husband, Judge Aaron Katz, if his wife’s $200K annual judicial salary is aided to continue with the help of the attorney fundraisers? Will any of these attorneys who have been generous with their time and money be cajoling and expecting anything in return from him?

To my knowledge judicial challengers Keehn and Ware have excellent credentials, experience and reputations. To my knowledge Judges Greer Katz and Mangione have excellent reputations as ethical judges since their recent appointments. (But then again, how would I know otherwise when the CJP is so secretive?)  All four have received thumbs up as “Qualified” from the San Diego County Bar Association.

It would be wrong-minded to judge a daughter, simply for the sins of her father over twenty years ago.  It would be wrong-minded to question the ethics of multiple San Diego Superior Court judges, based solely on the same. With that said,  it is human nature that it’s hard to disappoint those who have helped you and your loved ones.

Judges are suppose to be smart, logical and above reproach.  Why would a whole host of incumbent judges find it wise, ethical and uncompromised to allow so many criminal defense attorneys to help them solicit money to stay in their courts for a lifetime?  Was it a group brain-freeze, callous numbness to the status quo, or a self-perception that they are above the law?

What’s the difference between Judge Michael Greer and a few other judges accepting money and favor from a local attorney to fix court cases in the 90’s — and his daughter along with multiple San Diego judges accepting money and favor from many local attorneys now, to keep their $200K p/year jobs?

If even one of the local judges was complained about for hometowning and case-fixing for even one of the many attorney-fundraisers, would the CJP ever investigate?

“The question is naive. When a judge accepts gifts from lawyers there is no need for a payoff in any particular case.  The parties have established a climate of mutual esteem and of mutual help that rises about mere payoffs….”

Is Judicial Corruption Still Just Business as Usual in San Diego?

Like many others, I believe there is good cause to think that an unacceptable amount of ethics problems and conflicted interests are plaguing our courts — not just in San Diego, but throughout the state.

Like many others, I find it dangerously offensive that the judicial community has accepted money-solicitation efforts by criminals’ defense lawyers on the judges’ behalves.  Perhaps worse, there is evidence of the judges conclusively bullying their way to lifetime judicial appointments under the obviously false pretense that appointed judges are somehow more ethical and wise than any elected one could ever be.  I find it offensive that they work together to violate citizens’ rights to be able to vote bad judges out of office, by scaring off anyone who would cause their names to appear on voting-ballots.  The right to vote is part of the needed checks and balances to keep integrity in our courts and to curtail the practice of cronyism in the judicial system.

Like many others, I strongly believe that a forensic audit by the Bureau of State Auditors and resultant overhaul of the Commission on Judicial Performance  is direly needed for the future integrity of our courts.

 

And on a more personal note:

This blog would not be complete without a shout-out to Justice Judith McConnell.  She is the Presiding Justice of the Fourth District Division One Appellate Court, located in downtown San Diego. She is also the former Chairwoman of the Commission on Judicial Performance.

California Chief Justice Cantil-Sayauke recently gave Justice McConnell an award for her fine work in spreading the understanding of how Civics works. Congratulations to Justice McConnell for her decades of public service in the San Diego courts while aiding the understanding of how things really work!  I never would have known about this subject without her efforts.

Sharon Noonan Kramer

Whistleblower of a multi-billion dollar fraud in U.S. public health polices and toxic torts — aided and abetted to continue by 10 years of case-fixing of SLAPP suits and falsification of court documents in the San Diego courts. (Thank you to all whose research contributed to this blog)