COURT CLASH

August 2, 2000

by Jill Kramer

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The wine had been poured and the salads had been served as Judge Michael Dufficy and selected FLEAs -- members of the Family Law Elite Attorneys club -- sat in a private dining room at Salute, an Italian restaurant in San Rafael, one evening in December.  The group was meeting to discuss procedural changes in the courtroom. Arriving late, attorney Judith Cohen hurried in and took a seat at the long, cloth-covered table across from the judge. She announced that she was coming from a deposition in which the opposing attorney had behaved like a "madman."  Her eleven colleagues leaned in to hear more.

It was the kind of shop talk that often took place at such gatherings.  Attorneys and judges, just like members of any profession, talk about work when they get together.  And often the cases discussed at dinner were cases that Judge Dufficy was hearing in court, as Cohen's case was.  It was a highly contentious dispute over child and spousal support, with millions of dollars in question.  The "madman" that Cohen referred to -- not a member of the exclusive FLEAs -- had not, of course, been invited to the dinner.  And the woman he was representing in court had no way of knowing that her attorney -- and she, by association -- were being portrayed to the judge in an unfavorable light.

Except for chance circumstance, she might never have known.  But it happened that Cohen sat next to Kathryn Ballantine Shepherd, another long-time FLEA.  And it happened that Shepherd had recently been approached by the "madman" to take over the case because he believed that the only way his client could get a fair hearing in Dufficy's court was if she, like her ex-husband, was represented by a FLEA.

Shepherd's initial reaction to Cohen's story was to sympathize with her friend.  "It sort of made me reluctant to get into what looked like a mess," she says now.  But over the next few weeks she had further discussions with the wife's attorney and she heard the other side of the story.  She decided to take the case.

Over the next few months, Shepherd became convinced that Dufficy was indeed biased against her client.  She moved to have the case assigned to a judge outside the county.  The declaration she filed, alleging numerous examples of prejudice and unfair rulings, quickly became notorious throughout the small-town environment of the Marin legal community.  It was one more attack on the integrity of the family court, and there have been several in the course of the last few years:  an aborted Civil Grand Jury investigation, an undeclared but still ongoing FBI probe, complaints to the Commission on Judicial Performance, a privately commissioned report, a recall campaign launched by divorce litigants, even similar declarations from another attorney.  But Shepherd's declaration was especially significant.  All the other complaints had come from outsiders.  This one came from a FLEA, from the inside circle of friends surrounding Dufficy.  <I>Et tu<I>, Kathryn?

The essence of all the complaints is the same:  that the Marin family court, presided over by Dufficy, consistently rules in favor of a select group of attorneys, regardless of the evidence.  The Marin county bar association has responded to the controversy as if the institution of justice itself were under siege.  The group's board had hoped to organize a united front to defend against the various assaults. It appears, however, that the front is dividing.

Shepherd's break from the fold comes at a time when Dufficy's reign over the family court is ending anyway.  After nearly seven years as the only judge assigned to family law cases in Marin (some cases are heard by commissioners), Dufficy is transferring to civil court on September 1.  He hasn't heard any family law cases since mid-May, when his doctor advised him to reduce his stress. "I had an irregular heartbeat that was aggravated by stress," he says.  "Being a family law judge is stressful enough, and the doctor told me that, 'with all this furor over the Winner report and the recall, you're going to have to get out of it.'"

Throughout the controversy, Dufficy has steadfastly denied the charges that have been leveled against him.  Asked about Shepherd's declaration, he says, "I was shocked by what she's done.  I've known her for many years, I have a great deal of respect for her as a lawyer, I've handled countless cases of hers and she well knows I've ruled in her favor and I've ruled against her, depending on the evidence.  I was shocked that she would think I had any bias whatsoever [against] her client, because the evidence doesn't show it, and I <I>don't<I> have any bias."  And how does he remain neutral when hearing the gossip of attorneys?  "That kind of comment goes in one ear and out the other, I'm not going to get down on that level."

In May, he handed over most of his cases to Judge Lynn Duryee, whose rulings have been consistent with his.  To Dufficy's defenders, this is evidence that his decisions were just and equitable all along.  To his critics, it seems that his sphere of influence extends even to other judges.  They worry that, unless Dufficy is held responsible for any past judicial errors, the culture of cronyism will continue.

Dufficy's critics range from the reasoned to the rabid. Some -- both lawyers and lay people -- believe that the private report written by New York investigator Karen Winner raises questions that should be thoroughly investigated.  Others -- a group of divorce litigants -- reacted to the report with a mass hysteria that resembles the Salem witch trials.  They're collecting signatures for a vote that would recall not only Judge Dufficy, but Judges Lynn Duryee and Terrence Boren and District Attorney Paula Kamena.  Meanwhile, the three citizens who took the lead in commissioning Winner are watching the hysteria in dismay.  It was their intention to reform the court, not scrap it.

The recall campaign and the Winner report are the two most widely publicized attacks on the court, and that's where the Marin bar has focused its defense.  In May, the bar addressed the topic at one of its brown bag lunches, a regular event at which judges or other speakers hold forth on various legal issues.  Meeting in Judge Dufficy's courtroom, members of the bar filled the jury box and took seats in the audience.  Seated at the attorneys' tables were Judge Dufficy, Marin bar association president Royda Crosland, chair of the bar's family law section Kate Rockas, and two retired judges, Beverly Savitt of Marin and Roderick Duncan of Alameda.  Rockas had drafted a letter supporting the judges targeted by the recall and denouncing the Winner report.  Crosland hoped to gain consensus on the wording. 

But since the meeting, Crosland received a flurry of letters from members, some of whom were outraged at being asked to rally to Dufficy's defense -- in his courtroom, in his presence.  "…if the meeting's purpose was to ascertain the true reaction of the family law attorneys, was this purpose well served by having members of the bench present?  Might the presence of the judges have had a chilling effect on attorneys who have cases pending before those same judges?" wrote attorney Jill Weissich.  She also objected to the bar's dismissal of the Winner report without examination.  "So far, I've heard no rebuttals of any facts alleged in the report, just a great many laments about its existence… Instead of reacting to the Winner report like indignant partisans, the Marin bar association and the public would be better served addressing the substance of the allegations."

A group of FLEAs took it upon themselves to issue a rebuttal to the Winner report last month.  The seven authors include five attorneys who were named in the report as "favored" by the judge.  Cohen is among the authors, although she had not been named by Winner. The rebuttal was issued to members of the press along with a media release trumpeting that "37 factual errors" were exposed and refuted by the authors.

The rebuttal itself, however, doesn't live up to its advertising.  Most of the charges listed as "factual errors" are really criticisms of writing style or research lapses: too many qualifying words in a sentence, failure to interview litigants on both sides of a dispute, illegally publishing confidential documents.  The actual factual errors refuted by the rebuttal are often details not central to Winner's allegations, and the authors correct them with partial truths.  For example, three particular attorneys did not "co-own" an office, as Winner reported. The fact that they did share the space is not noted in the rebuttal.  Another example: No medical doctor testified in court in a case Winner cites, says the rebuttal.  No, he just submitted a sworn declaration.  And another: One attorney subpoenaed a key member of the civil grand jury not twice, as Winner wrote, but only once.

Left unaddressed is the substance of Winner's report: the allegation that cronyism and favoritism have produced miscarriages of justice in the Marin family court.  The rebuttal denies the allegation and offers arguments as to why it might seem logically unlikely, but fails to disprove it.  "I haven't seen them actually refute [Winner]," says Shepherd.  "I've seen them defend themselves.  I don't see an actual factual rebuttal of the concerns addressed by the Winner report. What's important is whether or not the L.A. county court found that [a litigant's daughter] had been abused (contrary to the finding of the Marin court).  Or whether or not this court had a policy of ordering parents who were recipients of child support to pay fees for the attorney for their children out of that support. Certainly the Winner report had its flaws, but the underlying concerns are significant."

But while attorneys like Shepherd and Weissich would like to see more investigation of Winner's charges, the legal establishment is satisfied that they have been proven false.  Crosland says she phoned Winner shortly after her report was published.  She questioned her, came away feeling that her research methods were unprofessional and decided to discount her conclusions.  She did not question the authors of the rebuttal, however. In fact, she hasn't read it. "I've read a synopsis of the rebuttal," says Crosland. "The family law attorneys have looked at [the Winner report] and they have concluded that Ms. Winner was not factually accurate. Those people really know what's going on in those cases, I don't.  And I don't really have the time to do an investigation of the court." 

Family law attorney Madeleine Simborg has certainly made up her mind. "The [Winner] report is, frankly, the most baseless bunch of trash I've ever read in my entire life," she says.  "No one that I've talked to that has a shred of intelligence believes it's worthy of any further remarks."   Simborg, a FLEA, has been raising funds from other attorneys to hire a public relations consultant to defend Dufficy and the other targets of the recall campaign.  A few days after the bar association's brown bag lunch, she sent out letters announcing that she, Kate Rockas and another colleague had each contributed $1,000 and asked for additional contributions. 

Although the letter promised earnestly to keep all contributions anonymous, Shepherd dismisses that idea as silly.  Simborg already identified herself and her two colleagues.  Besides, says Shepherd, Simborg's letter was attached to a note that had been sent to Dufficy, asking for his approval of the fundraising plan.  Shepherd voiced her objection in her declaration: "I am concerned that campaign finance laws and ethical rules would require disclosure of the identity of contributors and result in a deepening public perception of an uneven playing field in the courts…" Speaking to the Sun, she added, "Certainly I would want to know if my opposing counsel had deposited funds for a committee to defend the judge before whom I was appearing."

Simborg says she assumed the fundraising task because of her experience raising money for charitable causes. "The judges are prohibited by various codes of ethics from responding [to the charges of the recall petitioners], so someone was going to have to do it for them," she says.  As for the allegations of cronyism and wrongdoing, she feels certain that they are baseless.  And she is particularly disturbed that Shepherd has joined Dufficy's critics in making such charges.  "Kathryn's been a long-time friend of mine," she says. "I don't know what's going on with her.  I believe [her charges] are 100% false."

Simborg was present at the dinner at Salute that Shepherd describes in her declaration.  She doesn't remember Cohen's comments about the opposing attorney, but acknowledges that that sort of shop talk went on frequently in Dufficy's presence -- and, in Simborg's opinion, had no effect on his rulings. "As we meet socially and have dinner or work on rules or work on procedures, there is inevitably banter and small talk that the judge hears bits and pieces of.  You have to trust that the judge you're appearing in front of -- whether or not he had dinner the night before with your opposing counsel, or heard a joke about your client -- is going to hear your case based on the evidence before him.  I have never, ever doubted that Judge Dufficy has done so. And I don't know what the hell is wrong with Kathryn."

Shepherd knew she'd be alienating old friends when she filed her declaration.  "I imagine that in closed rooms and on telephone lines there's a lot of buzz and my name is invoked and people are clucking and speculating about why I would do such a thing," she says.  "But you know I have to be able to walk around with my head up.  Maybe I was weak before, but I really don't think that what's been going on here is right at all.  So that's why I'm doing it."

Shepherd for many years was part of what she calls "the A list."  Although the FLEAs, as a formal club, haven't met in more than a year, members have continued to socialize with Dufficy and his wife.  Every Memorial Day, the judge and his wife host a bash at their weekend home in the tiny town of Sheep Ranch, Calaveras county.  The big, white frame estate had been a hotel in the Gold Rush days and accommodates about 15 couples in the upstairs bedrooms.  A core group of FLEAs is usually invited, along with selected newcomers.

Of all the inner circle, Shepherd and her husband were among the Dufficys' closest friends.  She had always gone along with the view that Simborg expresses, that the judge would be able to remain unswayed by his social relationships and any prejudicial comments he might hear about his friends' cases.  She now believes that attitude is patronizing to litigants.  "It's a kind of arrogance -- 'we know what's best,'" she says. "The culture here among the lawyers and the bench has grown up around a sense of privilege. The people who are immersed in this don't see anything wrong with it.  But people looking in from outside seem to be shocked."

Simborg, expressing the view of the legal establishment, argues that there may be the <I>appearance<I> of impropriety, but no <I>actual<I> impropriety.  But family law attorney Bob Cleek maintains that the mere appearance of impropriety is bad enough. "The appearances are important, not for the attorneys, but for the litigants," he says.  "It's easy to say, 'well so what if Dufficy goes duck hunting with this attorney?  They were buddies for years before he became a judge.  I don't think it's going to make any difference in how he rules in his cases.'  But to maintain that this is proper because you know better is flat out wrong.  You've got to consider how the person who loses feels.  It's like a football game.  If one of the referees played or coached for the 49ers for 20 years and now it's the Super Bowl with the 49ers versus somebody else, maybe he's not the best guy to referee that game.  It isn't because he's dishonest.  It's just because the appearance of impartiality goes out the window.  And yet the attitude that I keep hearing is, 'so what? we know better.'"

But, beyond the issue of appearances, there are more and more attorneys asserting that actual rulings have been skewed.  The first lawyer to say so on the record was Paul Camera. In asking for Dufficy's recusal on a case last year, he stated in court documents that the judge had ruled improperly because of his social relationship with the opposing attorney.  Camera's associate, Barbara Kauffman, has also made formal objections.  Cleek, too, has been fairly open about his perceptions of bias.  Now Shepherd has added a sizeable log to the fire of criticism.

"It's certainly gratifying to finally see somebody besides us stand up and bark about it," says Camera.  "So I'm pleased that Kathryn is calling these people on it, although it's the last thing I ever expected."  Camera is also convinced that there are a number of other attorneys who agree with his perception of favoritism but aren't willing to come forward.  Anonymous comments from attorneys responding to last year's bar association survey revealed that a substantial minority experienced bias and cronyism in Dufficy's court.  "We're saying it publicly, but there are a lot of people who believe it privately, as that survey indicated.  It's very clear that they feel Dufficy is favoring his cronies at the expense of the litigants.  I think that's a good indication of what the truth is.  Certainly there are a lot more people than the four of us that think that's what's going on."

Camera has always been perceived as a powerful force in the family law community, without ever having been a member of the FLEAs.  He says he was never invited to join.  He was, however, once invited to Dufficy's Memorial Day party. "I declined, which didn't put me in a good light," he says. "And, of course, it never got me the 'in' with him that I would have had if I'd gone up there and got drunk with him.  That was probably not very politic of me, but I didn't like the idea. I didn't like the idea of sitting down and drinking with the judge!  And I never hired his wife, and I suppose that was probably something that was looked askance on." 

Dufficy's wife Penelope is a legal secretary who has worked as a temp in the offices of attorneys appearing before the judge.  Again, critics charge, there is an appearance of impropriety, regardless of whether the decision of the judge is affected.  But Dufficy says the issue hasn't come up in years. "If I knew that she worked on a case that I was hearing, I had a duty to disclose that.  But, half the time I don't even know where she is.  Most of her positions were fill-in, temporary work, and most of the firms she worked for didn't do any family law."

Another family law attorney who has gone public with criticism of the court is Joan Mann Thomas.  For the last four years, she has been using her peremptory challenges to remove Dufficy from her cases whenever possible, because she became convinced she couldn't get a fair hearing from him.  "For a couple of years, I had considerable difficulty with Judge Dufficy, getting very strange decisions I couldn't make rhyme nor reason of on a legal basis," she says.  "His decisions frequently have little or no basis in the facts that have been presented to him." 

Even more disturbing, Thomas believes that Dufficy influences other judges -- Judge Lynn Duryee, in particular -- to rule in accordance with him when they take over his cases. "Judge Duryee, in my opinion, simply does Judge Dufficy's bidding," she says.  "I think she is a puppet."  Barbara Kauffman's assessment is even harsher.  "Duryee's nickname is 'Dufficy's hit man,'" she says.  "If you thought you had it bad with Judge Dufficy and got transferred to Duryee, hold onto your hat because it's going to be ten times worse."  But why would a judge accede to such influence?  "Who recommended Duryee for the bench?" asks Thomas.  "Who forwarded her appointment?  Who is she beholden to?"  The answer, at least to her first two rhetorical questions, is Dufficy.

Thomas filed a challenge with the Judicial Council to have Duryee removed from one case for bias against her client.  It is a case that has a long and notoriously problematic history in Dufficy's courtrom, and was detailed in Winner's report. The challenge was denied.  "It is discouraging," says Thomas, "but it's not surprising.  As in all professions, [judges] tend to close rank.  Marin county is facing a terrible problem and certainly the Judicial Council has to be aware of this.  If any one of these challenges succeeds for cause" -- if another court finds that there is a culture of cronyism in Marin -- "there's going to be an exodus out of Marin on challenges for cause.  Every other county is going to be overwhelmed with cases coming out of Marin which would then be assigned to outside counties and Marin family court is going to be sitting there with nothing to do.  They've got to be very concerned about this."

If, as Thomas and others contend, there are a great many cases that have been decided in error, those cases may never receive the justice they deserve.  But there are measures that can be taken to promise fair hearings in the future. Shepherd has two suggestions.  "There should be frequent rotation of assignments so that [no one judge] gets entrenched with a group of lawyers," she says.  "I also like the idea that there be a citizens' commission that makes reports on what would make the system work better." 

Camera, at age 64, is close to retirement.  But Shepherd, Weissich, Thomas, Cleek and Kauffman have risked their careers by speaking out.  Still, says Kauffman, it was an obvious choice.  "I am committed to getting the system cleaned up," she says, "because I want to practice here."

This is the first of a series of articles about cronyism in Marin’s family court that inspired the novel Criminal Decision.