San Diego Judge Publicly Censured
Over ‘Wet Reckless’ Plea
By SHERRI M. OKAMOTO, Staff Writer
Metropolitan News-Enterprise
September 17, 2008
The Commission on Judicial Performance
has publicly admonished San Diego Superior
Court Judge Lisa Schall over her conviction
stemming from a 2007 arrest for drunk driving.
Seven of the commission’s 10 members
voted 6-1 to admonish Schall—who is
referred to in the admonishment as
Lisa Guy-Schall, but who dropped the
hyphenation of her name in June—in
a letter dated Sept. 5.
Schall, who could not be reached for
comment, currently presides over civil
trials in the court’s Vista Courthouse,
and was arrested on the evening of
Sept. 12, 2007 when an officer of the
Escondido Police Department conducted
a traffic stop after observing her vehicle
traveling in the wrong direction on the
Centre City Parkway, a divided four-lane highway.
The jurist was charged with driving under the
influence of alcohol in violation of Vehicle
Code Sec.23152(a), and driving with a blood
alcohol level in excess of 0.08 percent in
violation of Sec. 23152(b), after she allegedly
failed a field sobriety test, and a blood test
performed within the hour indicated a blood
alcohol level of approximately 0.09 percent.
She pled guilty to the lesser offense of alcohol-related reckless driving in March.
The commission wrote that Schall’s unlawful conduct “evidence[d] a serious disregard
of the principles of personal and official conduct embodied in the California Code of
Judicial Ethics,” and violated canons one and two of the code, which require that
members of the judiciary maintain high standards of conduct so that the integrity and
independence of the judiciary will be preserved, respect and comply with the law, and
act at all times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
“[A]t a minimum,” the commission said, Schall’s conduct was “improper action pursuant
to article VI, section 18(d)(3) of the California Constitution,” and voted 6-to-1 in favor
of public admonishment.
In determining that a public admonishment was appropriate, the commission noted that
Schall had previously received a private admonishment in 1995 and a public
admonishment in 1999. The private admonishment addressed Schall’s embroilment in
a juvenile dependency case, the commission said, while the public admonishment
addressed her abuse of the contempt power during a 1995 incident in which Schall
ordered a defendant appearing before her for a hearing on a petition for a restraining
order to exit the courtroom.
Schall had found the defendant in direct contempt and sentenced her to five days in
jail without citing the defendant for contempt, having the defendant returned to the
courtroom, or stating the facts sufficient to constitute contempt. The jurist did not
acknowledge any problems with her handling of the matter to the commission.
Then-Gov. George Deukmejian appointed Schall to the San Diego Municipal Court in
1985 and to the Superior Court in 1989. A native of Annapolis, Md., she was reared in
Southern California and served eight years as a deputy district attorney in San Diego
before taking the bench.
Schall attended Western State University College of Law—now the Thomas Jefferson
School of Law—where she earned a joint bachelor’s and law degree in 1977, as well
as California State University, San Diego, and previously serviced as the supervising
criminal judge in Vista and as head of the court’s Rules Committee.
Orange Superior Court Judge Frederick B. Horn, the commission chairman, attorney
Peter Flores, and public members Barbara Schraeger, Maya Dillard-Smith, Sandra
Talcott and Nathaniel Trives voted to impose a public admonishment.
San Francisco Superior Court Judge Katherine Feinstein voted to impose a private
admonishment, while Presiding Justice Judith D. McConnell of the Fourth District Court
of Appeal’s Div. One and attorney Marshall Grossman were recused.
Public members Samuel A. Hardage and Lawrence Simi did not participate.
Over ‘Wet Reckless’ Plea
By SHERRI M. OKAMOTO, Staff Writer
Metropolitan News-Enterprise
September 17, 2008
The Commission on Judicial Performance
has publicly admonished San Diego Superior
Court Judge Lisa Schall over her conviction
stemming from a 2007 arrest for drunk driving.
Seven of the commission’s 10 members
voted 6-1 to admonish Schall—who is
referred to in the admonishment as
Lisa Guy-Schall, but who dropped the
hyphenation of her name in June—in
a letter dated Sept. 5.
Schall, who could not be reached for
comment, currently presides over civil
trials in the court’s Vista Courthouse,
and was arrested on the evening of
Sept. 12, 2007 when an officer of the
Escondido Police Department conducted
a traffic stop after observing her vehicle
traveling in the wrong direction on the
Centre City Parkway, a divided four-lane highway.
The jurist was charged with driving under the
influence of alcohol in violation of Vehicle
Code Sec.23152(a), and driving with a blood
alcohol level in excess of 0.08 percent in
violation of Sec. 23152(b), after she allegedly
failed a field sobriety test, and a blood test
performed within the hour indicated a blood
alcohol level of approximately 0.09 percent.
She pled guilty to the lesser offense of alcohol-related reckless driving in March.
The commission wrote that Schall’s unlawful conduct “evidence[d] a serious disregard
of the principles of personal and official conduct embodied in the California Code of
Judicial Ethics,” and violated canons one and two of the code, which require that
members of the judiciary maintain high standards of conduct so that the integrity and
independence of the judiciary will be preserved, respect and comply with the law, and
act at all times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
“[A]t a minimum,” the commission said, Schall’s conduct was “improper action pursuant
to article VI, section 18(d)(3) of the California Constitution,” and voted 6-to-1 in favor
of public admonishment.
In determining that a public admonishment was appropriate, the commission noted that
Schall had previously received a private admonishment in 1995 and a public
admonishment in 1999. The private admonishment addressed Schall’s embroilment in
a juvenile dependency case, the commission said, while the public admonishment
addressed her abuse of the contempt power during a 1995 incident in which Schall
ordered a defendant appearing before her for a hearing on a petition for a restraining
order to exit the courtroom.
Schall had found the defendant in direct contempt and sentenced her to five days in
jail without citing the defendant for contempt, having the defendant returned to the
courtroom, or stating the facts sufficient to constitute contempt. The jurist did not
acknowledge any problems with her handling of the matter to the commission.
Then-Gov. George Deukmejian appointed Schall to the San Diego Municipal Court in
1985 and to the Superior Court in 1989. A native of Annapolis, Md., she was reared in
Southern California and served eight years as a deputy district attorney in San Diego
before taking the bench.
Schall attended Western State University College of Law—now the Thomas Jefferson
School of Law—where she earned a joint bachelor’s and law degree in 1977, as well
as California State University, San Diego, and previously serviced as the supervising
criminal judge in Vista and as head of the court’s Rules Committee.
Orange Superior Court Judge Frederick B. Horn, the commission chairman, attorney
Peter Flores, and public members Barbara Schraeger, Maya Dillard-Smith, Sandra
Talcott and Nathaniel Trives voted to impose a public admonishment.
San Francisco Superior Court Judge Katherine Feinstein voted to impose a private
admonishment, while Presiding Justice Judith D. McConnell of the Fourth District Court
of Appeal’s Div. One and attorney Marshall Grossman were recused.
Public members Samuel A. Hardage and Lawrence Simi did not participate.
| .. |
Judge Sharon Armstrong (a
graduate of Catholic University like
Judge Judith Hayes)
graduate of Catholic University like
Judge Judith Hayes)
Judges from everywhere
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
Why This Website
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
COMMISSION ON JUDICIAL
PERFORMANCE
455 Golden Gate Avenue, Suite
14400
San Francisco, CA 94102
_______________________________
Contact: Victoria B. Henley FOR
RELEASE
Director-Chief Counsel October
14, 1999
(415) 557-1200
_______________________________
JUDICIAL PERFORMANCE
COMMISSION ISSUES
PUBLIC ADMONISHMENT OF
JUDGE LISA GUY-SCHALL
The Commission on Judicial
Performance has publicly
admonished Judge Lis
a Guy-Schall of the San Diego
County Unified Superior Court.
The admonishment is attached.
The commission is composed of
six public members, three judges
and two lawyers. One of
the public member positions is
currently vacant. The
Chairperson is the Honorable
Daniel M. Hanlon of the Court of
Appeal, First Appellate District in
San Francisco.
PUBLIC ADMONISHMENT OF
JUDGE LISA GUY-SCHALL
The Commission on Judicial
Performance has ordered Judge
Lisa Guy-Scha
ll publicly admonished pursuant
to Article VI, section 18(d) of the
California Constitution and
Commission Rule 115, as set
forth in the following statement of
facts and reasons found by the
commission:
STATEMENT OF FACTS AND
REASONS
On December 18, 1995, Joanna
Slivka appeared before Judge
Guy-Schall for a hearing on a
petition for a restraining order
against Ms. Slivka. During the
hearing, Ms. Slivka began yelling
and acting aggressively, and
Judge Guy-Schall ordered her
out of the courtroom. While Ms.
Slivka
was outside the courtroom, Judge
Guy-Schall had her bailiff ask Ms.
Slivka if she
would be willing
to reappear in court and keep
herself under control; the bailiff
reported to the
judge that Ms. Slivka
had responded that if the judge
would not allow her to tell her
story, she would probab
ly “go off”
again. In Ms. Slivka’s absence,
without citing her for contempt or
having her ret
urned to the
courtroom, Judge Guy-Schall
found her in contempt and
sentenced her to five days in jai
l. The
order issued by Judge Guy-
Schall stated that Ms. Slivka was
in direct contem
pt and was to serve
five actual days in jail. With
respect to the facts underlying
the finding
of contempt, the order
stated, “full order and findings
are set forth in the reporter’s
transcript t
hat is order [sic] this date.”
Ms. Slivka was taken into custody
outside the courtroom and
remained in custody for fi
ve days.
Judge Guy-Schall’s actions
constituted an abuse of the
contempt power. By f
ailing to return
Ms. Slivka to court to inform her
that she was in contempt, failing
to give her a chanc
e to respond to
the contempt order, and finding
her in contempt in her absence,
Judge Guy-Schall fail
ed to follow
the required procedures for
holding an individual in contempt
of court. (See,
Ryan
v.
Commission
on
Judicial Performance
(1988) 45 Cal.3d 518, 533, in
which the commission and the
California
Supreme Court found that a
judge committed willful
misconduct by holding a litiga
nt in contempt
in her absence and incarcerating
her, for a remark uttered as she
left t
he courtroom.) The contempt
order entered by Judge Guy-
Schall failed to state on its face
facts suffi
cient to constitute a contempt,
as also required by law. (See,
In re Baroldi
(1987) 189 Cal.App.3d 101, 110;
Cannon
v.
Commission on Judicial
Qualifications
(1975) 14 Cal.3d 678, 694.)
Judge Guy-Schall, who had
been a judge for ten years at the
time of the incident, was
obligated to know or
research proper
contempt procedures. (See,
Cannon
,
supra
, 14 Cal.3d at p. 694;
Ryan
,
supra
, 45 Cal.3d at p. 533.)
The contempt power, which
permits a single official to deprive
a cit
izen of his fundamental
liberty interest without all of the
procedural safeguards normally
acc
ompanying such a deprivation,
must be used with great
prudence and caution. It is
essential that judges kn
ow and follow proper
procedures in exercising this
power. (See,
Furey
v.
Commission on Judicial
Performance
(1987) 43
Cal.3d 1297, 1314;
Ryan
v.
Commission on Judicial
Performance
,
supra
, 45 Cal.3d at p. 533;
Cannon
v.
Commission on Judicial
Qualifications
,
supra
, 14 Cal.3d at p. 694.)
Judge Guy-Schall has informed
the commission that this is the
only instance in whi
ch she
has found an individual in
contempt. However, she has
acknowledged no problems in her
handling
of this matter.
Commission members Justice
Daniel M. Hanlon, Ms. Lara
Bergthold, Mr. M
ike Farrell, Mr.
Michael A. Kahn, Mr. Patrick M.
Kelly, Mrs. Crystal Lui, Judge
Rise Jones Pichon, Ms
. Ramona
Ripston, and Ms. Julie Sommars
voted to impose a public
admonishment. Judge Madelei
ne I. Flier
voted against public
admonishment and would have
imposed a less severe sanction.
Dr. D
onald E.
Vinson did not participate.
PERFORMANCE
455 Golden Gate Avenue, Suite
14400
San Francisco, CA 94102
_______________________________
Contact: Victoria B. Henley FOR
RELEASE
Director-Chief Counsel October
14, 1999
(415) 557-1200
_______________________________
JUDICIAL PERFORMANCE
COMMISSION ISSUES
PUBLIC ADMONISHMENT OF
JUDGE LISA GUY-SCHALL
The Commission on Judicial
Performance has publicly
admonished Judge Lis
a Guy-Schall of the San Diego
County Unified Superior Court.
The admonishment is attached.
The commission is composed of
six public members, three judges
and two lawyers. One of
the public member positions is
currently vacant. The
Chairperson is the Honorable
Daniel M. Hanlon of the Court of
Appeal, First Appellate District in
San Francisco.
PUBLIC ADMONISHMENT OF
JUDGE LISA GUY-SCHALL
The Commission on Judicial
Performance has ordered Judge
Lisa Guy-Scha
ll publicly admonished pursuant
to Article VI, section 18(d) of the
California Constitution and
Commission Rule 115, as set
forth in the following statement of
facts and reasons found by the
commission:
STATEMENT OF FACTS AND
REASONS
On December 18, 1995, Joanna
Slivka appeared before Judge
Guy-Schall for a hearing on a
petition for a restraining order
against Ms. Slivka. During the
hearing, Ms. Slivka began yelling
and acting aggressively, and
Judge Guy-Schall ordered her
out of the courtroom. While Ms.
Slivka
was outside the courtroom, Judge
Guy-Schall had her bailiff ask Ms.
Slivka if she
would be willing
to reappear in court and keep
herself under control; the bailiff
reported to the
judge that Ms. Slivka
had responded that if the judge
would not allow her to tell her
story, she would probab
ly “go off”
again. In Ms. Slivka’s absence,
without citing her for contempt or
having her ret
urned to the
courtroom, Judge Guy-Schall
found her in contempt and
sentenced her to five days in jai
l. The
order issued by Judge Guy-
Schall stated that Ms. Slivka was
in direct contem
pt and was to serve
five actual days in jail. With
respect to the facts underlying
the finding
of contempt, the order
stated, “full order and findings
are set forth in the reporter’s
transcript t
hat is order [sic] this date.”
Ms. Slivka was taken into custody
outside the courtroom and
remained in custody for fi
ve days.
Judge Guy-Schall’s actions
constituted an abuse of the
contempt power. By f
ailing to return
Ms. Slivka to court to inform her
that she was in contempt, failing
to give her a chanc
e to respond to
the contempt order, and finding
her in contempt in her absence,
Judge Guy-Schall fail
ed to follow
the required procedures for
holding an individual in contempt
of court. (See,
Ryan
v.
Commission
on
Judicial Performance
(1988) 45 Cal.3d 518, 533, in
which the commission and the
California
Supreme Court found that a
judge committed willful
misconduct by holding a litiga
nt in contempt
in her absence and incarcerating
her, for a remark uttered as she
left t
he courtroom.) The contempt
order entered by Judge Guy-
Schall failed to state on its face
facts suffi
cient to constitute a contempt,
as also required by law. (See,
In re Baroldi
(1987) 189 Cal.App.3d 101, 110;
Cannon
v.
Commission on Judicial
Qualifications
(1975) 14 Cal.3d 678, 694.)
Judge Guy-Schall, who had
been a judge for ten years at the
time of the incident, was
obligated to know or
research proper
contempt procedures. (See,
Cannon
,
supra
, 14 Cal.3d at p. 694;
Ryan
,
supra
, 45 Cal.3d at p. 533.)
The contempt power, which
permits a single official to deprive
a cit
izen of his fundamental
liberty interest without all of the
procedural safeguards normally
acc
ompanying such a deprivation,
must be used with great
prudence and caution. It is
essential that judges kn
ow and follow proper
procedures in exercising this
power. (See,
Furey
v.
Commission on Judicial
Performance
(1987) 43
Cal.3d 1297, 1314;
Ryan
v.
Commission on Judicial
Performance
,
supra
, 45 Cal.3d at p. 533;
Cannon
v.
Commission on Judicial
Qualifications
,
supra
, 14 Cal.3d at p. 694.)
Judge Guy-Schall has informed
the commission that this is the
only instance in whi
ch she
has found an individual in
contempt. However, she has
acknowledged no problems in her
handling
of this matter.
Commission members Justice
Daniel M. Hanlon, Ms. Lara
Bergthold, Mr. M
ike Farrell, Mr.
Michael A. Kahn, Mr. Patrick M.
Kelly, Mrs. Crystal Lui, Judge
Rise Jones Pichon, Ms
. Ramona
Ripston, and Ms. Julie Sommars
voted to impose a public
admonishment. Judge Madelei
ne I. Flier
voted against public
admonishment and would have
imposed a less severe sanction.
Dr. D
onald E.
Vinson did not participate.
Judge Lisa Schall
Citation 6 Cal.4th 68
In re Kieshia E.
Stanford Law School
citation
Petitions for review after the
Court of Appeal affirmed an
order in a dependency
proceeding. This case is
concerned with whether
an unrelated member of
the household who had
molested the minor was
properly accorded de
facto parent status in
dependency
proceedings.
In 2014, Judge Schall
was asked by Sharon
Kramer:
"In 1995, were you
privately admonished
by the CJP for giving
custody of a minor to
her mother whose live-
in boyfriend, “de facto
father”, was known to
the courts to have been
established as
molesting the child?[22]
(fn 24, 2008 public
admonishment
indicates a private
admonishment
involving a minor) ?"
In re Kieshia E.
Stanford Law School
citation
Petitions for review after the
Court of Appeal affirmed an
order in a dependency
proceeding. This case is
concerned with whether
an unrelated member of
the household who had
molested the minor was
properly accorded de
facto parent status in
dependency
proceedings.
In 2014, Judge Schall
was asked by Sharon
Kramer:
"In 1995, were you
privately admonished
by the CJP for giving
custody of a minor to
her mother whose live-
in boyfriend, “de facto
father”, was known to
the courts to have been
established as
molesting the child?[22]
(fn 24, 2008 public
admonishment
indicates a private
admonishment
involving a minor) ?"
San Diego Democrats Endorse
Carla Keehn for Superior Court
Judge to replace Lisa Schall in
June 2014
Carla Keehn for Superior Court
Judge to replace Lisa Schall in
June 2014
Schall is endorsed by retired
Judge Linda B. Quinn.
Judge Linda B. Quinn.
2014 Endorsements
Early list included Bonnie
Dumanis
March 21, 2014 list does not
include Bonnie Dumanis
Early list included Bonnie
Dumanis
March 21, 2014 list does not
include Bonnie Dumanis
Tuesday, April 8, 2014
The Stutz Artiano Shinoff & Holtz v. Larkins case is a window
into how San Diego Superior Court functions; also, two
decisions by Judge Lisa Schall overturned
Is Judith Hayes a typical San Diego Superior Court judge or is she unusual in her
brazen refusal to follow the law when she wants a litigant to lose?
See a synopsis of Judge Hayes' actions in the defamation case against me by Stutz
Artiano Shinoff & Holtz. The case record could serve as a manual for judges who
want to deprive a defendant of a jury trial. I have not been able to find any attorney
who knows of another case in which a default was granted AFTER summary
adjudication. If Judge Hayes' actions are upheld by the Court of Appeal, I imagine it
will happen more often.
I don't want to believe that Judith Hayes is typical of San Diego judges. I want to
believe that many, if not most, of our Superior Court judges are interested in
honestly applying the law to every case. Still, assuming that there is a majority of
judges who carefully follow the law, I have come to believe that it is not an
overwhelming majority.
I have learned over the past few years that a good number of Judge Hayes'
colleagues feel that their job is simply to churn out decisions that preserve the status
quo for people in power in both public and private spheres. It's not a justice system
for these judges, it's a decision-making system meant to preserve the power of
whatever individuals, no matter how incompetent or corrupt, have attained positions
of influence. It's no wonder our schools are failing, our pocketbooks are shrinking
and our quality of life is diminishing.
This is why I support the election of federal prosecutor Carla Keehn to replace Judge
Lisa Schall. We need judges who aren't completely plugged-in to the current web of
alliances at the court.
We need to chip away wherever we can at the power of those who prevent change
for the better in how people and organizations treat each other in San Diego.
My own case is a testament to the disregard for the law by many highly respected
members of the local bar, including attorneys who have contracts with local public
entities.
I have defended myself from Stutz Artiano Shinoff & Holtz to the best of my ability
even though I knew that I would continually make serious errors in my conduct of the
case. My goal was to create a record, which would be valuable whether I won or lost.
In fact, it is more valuable when I lose. By winning, I don't prove that the justice
system works, I only prove that it worked on one occasion.
The record of my case is a fascinating story. USD professor Shaun Martin was kind
enough to take over one of my appeals pro bono (and give me a win in the Court of
Appeal), but he was not in a position to work on the complex and compromised
Superior Court case. If one of the other 5000 local members of the bar had been
willing to stand up to Stutz Artiano Shinoff & Holtz, I would have more money, but I
wouldn't know how corrupt the Superior Court--and the myriad officers of that
court--can be. I'm glad I know. Ignorance isn't as blissful as some people claim.
I'd like to send a big thank you to David Loy, the San Diego ACLU general counsel
who instructed me to take down every mention of Stutz law firm on my websites--even
though Mr. Loy said the ACLU wasn't going to give me any legal advice. Perhaps Mr.
Loy figured that if he was simply intimidating me, that wouldn't count as legal advice.
Mr. Loy is on the record praising himself for reaching settlements with Stutz lawyer
Dan Shinoff regarding student speech in schools. It would seem that the deals Mr.
Loy struck with Stutz caused him to feel obliged to undermine employee speech in
schools on be. His goal was apparently to get good publicity for the ACLU, and he
figured no one would ever know how much effort he put into enforcing an injunction
that the Court of Appeal found to be unconstitutional.
I am not surprised that former executive director Kevin Keenan chose to leave the
San Diego ACLU. I suspect he tries not to think about some of the cases he was
forced to work on, or prevented from working on. The bizarre Johnson v. Poway
Unified School District case comes to mind, in which the San Diego ACLU insisted
that local high school students should be forced to sit in class under large signs with
Christian messages on them. That was a case in which the San Diego ACLU should
have been on Dan Shinoff's side.
Two decisions of Judge Lisa Schall reversed
Sometimes I think judges might just be lazy, repeating their usual actions instead of
thinking hard about a case.
San Diego Trial Court REVERSED (Again) in MOVE-AWAY Case
Thurman Arnold
May 3, 2011
Parental Relocations and Move-Away
In response to a recent article I posted about the case of F.T. vs. L.J., the mother of
the Mother in Mark T. vs. Jaime Z. submitted a comment about a new reversal of a
case involving Judge Lisa C. Schall, in San Diego, on this Blog - for which I thanked
her. I am grateful that family law litigants in these published appeals are increasingly
airing their side of the experience here, and I invite you to as well!
The decision in her daughter's case was published on Friday, last week, so I now
understand what the maternal grandmother, "Shelly," was referencing.
My sense is that appellate courts are expecting more out of trial judges, like never
before, and lawyers too, to be sure, and therapists and court services personnel and
litigants themselves! An interesting footnote is that the father's attorneys in this case
were certified family law specialists, and (presumably) local San Diego heavyweights,
and the mother represented herself and yet succeeded "against all odds." Is this an
Elkins Aftermath, leveling the playing field for unrepresented parties against
experienced adversaries?
Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115
In Mark T. v. Jamie Z. certified for publication on April 28, 2011 by the Fourth
Appellate District, a San Diego trial court was again reversed in a move-away case
where she effectively refused to permit a custodial parent to move out of state
without addressing what custody orders should issue if the parent did move. In F.T.
vs. L.J. it was the Father who wanted to relocate - here it was the Mother but in both
cases it was the same judicial officer.
Judge Lisa C. Schall doesn't like move-aways, it appears. These applications
challenge the non-moving parent and can negatively impact a child's access to that
parent, and disrupt parent-child bonding, if a holistic parenting plan under the
move-away regime is not developed.
Judge Schall bears the indignity of being reversed twice now in less than 30 days in
a reported appellate decision - quite a scolding. Family law is damned tough for
judicial officers, who are doing their best to protect children and weigh in consistently
with the cutting edge policies of current mental health science as well as their
in-house (FCS) advisors. The problem at present is that the opinions of MHP's
(mental health providers), and the wisdom of the reviewing courts, are in conflict. The
science of move-away as it affects families from the MHP perspective is still
developing, and it collides with certain cherished assumptions the law makes about
the rights of Americans, and specifically parents in California under our current
statutory scheme (see Family Code section 7501 and the Burgess case) to move
freely.
In both cases Judge Schall accepted (mostly) the independent opinions of outside,
court-appointed, mental health forensics and ignored the opinions of the Family
Court Services mediator - here the very same Lynne Waldman who made
recommendations in the F.T. case. FCS mediator Waldman's belief was that Jamie's
move away request should be granted, noting that Jamie had been L.'s primary
caretaker since his birth, that Jamie had been unable to find a job in San Diego and
was "living in poverty," and that Jamie appeared "to have a clear plan for the move."
Judge Schall now has two strikes against her for using judicial body language to
create a result that she felt was fair and appropriate, and her findings on the record
illustrate her dilemma. I'm reminded of my early youth playing pool (not so much) and
hoping if I twisted my body hard enough, the ball would fall in the pocket. Most of us
are doing the best we can. Trial judges, however, have a script they must follow.
In effect, Judge Schall's mistake was to refuse to permit a move-away by a Mom with
a 22 month old child who had indeed been the child's "primary caretaker since birth."
By effectively coercing Mom not to move by denying her move-away request, and by
ignoring the question of "in whose custody" the child's best interests were served" or
what arrangement should be imposed were Mom to move, Judge Schall committed
reversible error. The justices ruled:
"The court must decide de novo what physical custody arrangement would be in the
child's best interests, assuming that the requesting parent will relocate ." Therapist
Dr. Lori Love (we can't invent this name stuff) was appointed to evaluate the family
for the Court and opined that "[t]his examiner understands the importance of having
extended family around for support however this cannot be justified as being in [L.'s]
best interest[s] when it means removing him from a loving and capable father. Jamie
stated that she did not have an active father in her life and very much wants that to
happen for [L.] It would be virtually impossible for Mark to be an active father from
across the country." Dr. Love urged the child was too young for the move and went
on to recommend that Mom not "be permitted to move out of the County of San
Diego. At the same time, this forensic therapist was unwilling to recommend a primary
change in custody and assumed that the mother would in fact remain the primary
caretaker in San Diego county. She made no recommendations about what custodial
arrangement should become effective when or if the Mother moved.
The appellate justices ruled: "Where, as here, a parent who shares joint custody of a
minor makes a request to relocate the child in the context of an initial custody
determination, the trial court must decide de novo what physical custody
arrangement would be in the child's best interests. In making its custody
determination, the court must proceed on the assumption that the parent who is
making the request will relocate his or her own residence, regardless of whether the
court grants or denies the request. In this case, the court erroneously failed to
conduct its best interests analysis based on the presumption that Jamie would be
relocating to Minnesota."
The trial court adopted the recommendations of Dr. Love, even though Dr. Love
failed to address what should happen if and when Jamie relocates out of state. "The
very issue that Dr. Love was supposed to address is what parenting plan would be in
L.'s best interests, given that Jamie intended to move to Minnesota .... The court
misapplied the law in adopting Dr. Love's recommendations, because in making
those recommendations, Dr. Love incorrectly assumed that preserving the status
quo parenting arrangement was an option, even in the face of Jamie's expressed
intent to move...." At trial the Father's attorney asked Mother whether she would
move if the court were to deny her request to relocate, and Mom's response showed
she was tortured by the question. The appellate court ruled that this question by
counsel was improper - courts cannot consider whether the primary parent might
alter their plan of relocate depending upon how the court rules. As a trial lawyer this
is interesting to me, because this question is often used to telegraph a message to
the Court that implies it can deny the move because the moving parent evidently
doesn't want to move 'badly enough.'
Apparently the trial court suspected Mother's motives for moving might include
frustrating Father's access, but the court did not actually make such findings. "The
court's comments regarding Jamie's reasons for moving to Minnesota appear to
constitute second-guessing as to the wisdom of Jamie's decision to move (i.e.,
questioning the "necessity" of the relocation), as opposed to a finding that her
decision to move was made 'simply to frustrate the noncustodial parent's contact with
the minor child.'" There is no requirement that a parent who has the right to custody
of a child establish the necessity of a proposed move. "[E]ven where the court finds
that a move away request is being made in bad faith, the court must view this finding
as only one potential factor in deciding whether to allow the child's residence to be
moved; it does not permit the court to deny the move away request on the
presumption that in denying the request, the court can assure that the requesting
parent will not in fact move, and that the court can thereby maintain the status quo
parenting arrangement. That one parent may have been motivated, in part, to
relocate the child's residence by a desire to lessen the child's contact with the other
parent does not mean that the court should apply any
standard other than what would be in the best interests
of the child."
The Stutz Artiano Shinoff & Holtz v. Larkins case is a window
into how San Diego Superior Court functions; also, two
decisions by Judge Lisa Schall overturned
Is Judith Hayes a typical San Diego Superior Court judge or is she unusual in her
brazen refusal to follow the law when she wants a litigant to lose?
See a synopsis of Judge Hayes' actions in the defamation case against me by Stutz
Artiano Shinoff & Holtz. The case record could serve as a manual for judges who
want to deprive a defendant of a jury trial. I have not been able to find any attorney
who knows of another case in which a default was granted AFTER summary
adjudication. If Judge Hayes' actions are upheld by the Court of Appeal, I imagine it
will happen more often.
I don't want to believe that Judith Hayes is typical of San Diego judges. I want to
believe that many, if not most, of our Superior Court judges are interested in
honestly applying the law to every case. Still, assuming that there is a majority of
judges who carefully follow the law, I have come to believe that it is not an
overwhelming majority.
I have learned over the past few years that a good number of Judge Hayes'
colleagues feel that their job is simply to churn out decisions that preserve the status
quo for people in power in both public and private spheres. It's not a justice system
for these judges, it's a decision-making system meant to preserve the power of
whatever individuals, no matter how incompetent or corrupt, have attained positions
of influence. It's no wonder our schools are failing, our pocketbooks are shrinking
and our quality of life is diminishing.
This is why I support the election of federal prosecutor Carla Keehn to replace Judge
Lisa Schall. We need judges who aren't completely plugged-in to the current web of
alliances at the court.
We need to chip away wherever we can at the power of those who prevent change
for the better in how people and organizations treat each other in San Diego.
My own case is a testament to the disregard for the law by many highly respected
members of the local bar, including attorneys who have contracts with local public
entities.
I have defended myself from Stutz Artiano Shinoff & Holtz to the best of my ability
even though I knew that I would continually make serious errors in my conduct of the
case. My goal was to create a record, which would be valuable whether I won or lost.
In fact, it is more valuable when I lose. By winning, I don't prove that the justice
system works, I only prove that it worked on one occasion.
The record of my case is a fascinating story. USD professor Shaun Martin was kind
enough to take over one of my appeals pro bono (and give me a win in the Court of
Appeal), but he was not in a position to work on the complex and compromised
Superior Court case. If one of the other 5000 local members of the bar had been
willing to stand up to Stutz Artiano Shinoff & Holtz, I would have more money, but I
wouldn't know how corrupt the Superior Court--and the myriad officers of that
court--can be. I'm glad I know. Ignorance isn't as blissful as some people claim.
I'd like to send a big thank you to David Loy, the San Diego ACLU general counsel
who instructed me to take down every mention of Stutz law firm on my websites--even
though Mr. Loy said the ACLU wasn't going to give me any legal advice. Perhaps Mr.
Loy figured that if he was simply intimidating me, that wouldn't count as legal advice.
Mr. Loy is on the record praising himself for reaching settlements with Stutz lawyer
Dan Shinoff regarding student speech in schools. It would seem that the deals Mr.
Loy struck with Stutz caused him to feel obliged to undermine employee speech in
schools on be. His goal was apparently to get good publicity for the ACLU, and he
figured no one would ever know how much effort he put into enforcing an injunction
that the Court of Appeal found to be unconstitutional.
I am not surprised that former executive director Kevin Keenan chose to leave the
San Diego ACLU. I suspect he tries not to think about some of the cases he was
forced to work on, or prevented from working on. The bizarre Johnson v. Poway
Unified School District case comes to mind, in which the San Diego ACLU insisted
that local high school students should be forced to sit in class under large signs with
Christian messages on them. That was a case in which the San Diego ACLU should
have been on Dan Shinoff's side.
Two decisions of Judge Lisa Schall reversed
Sometimes I think judges might just be lazy, repeating their usual actions instead of
thinking hard about a case.
San Diego Trial Court REVERSED (Again) in MOVE-AWAY Case
Thurman Arnold
May 3, 2011
Parental Relocations and Move-Away
In response to a recent article I posted about the case of F.T. vs. L.J., the mother of
the Mother in Mark T. vs. Jaime Z. submitted a comment about a new reversal of a
case involving Judge Lisa C. Schall, in San Diego, on this Blog - for which I thanked
her. I am grateful that family law litigants in these published appeals are increasingly
airing their side of the experience here, and I invite you to as well!
The decision in her daughter's case was published on Friday, last week, so I now
understand what the maternal grandmother, "Shelly," was referencing.
My sense is that appellate courts are expecting more out of trial judges, like never
before, and lawyers too, to be sure, and therapists and court services personnel and
litigants themselves! An interesting footnote is that the father's attorneys in this case
were certified family law specialists, and (presumably) local San Diego heavyweights,
and the mother represented herself and yet succeeded "against all odds." Is this an
Elkins Aftermath, leveling the playing field for unrepresented parties against
experienced adversaries?
Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115
In Mark T. v. Jamie Z. certified for publication on April 28, 2011 by the Fourth
Appellate District, a San Diego trial court was again reversed in a move-away case
where she effectively refused to permit a custodial parent to move out of state
without addressing what custody orders should issue if the parent did move. In F.T.
vs. L.J. it was the Father who wanted to relocate - here it was the Mother but in both
cases it was the same judicial officer.
Judge Lisa C. Schall doesn't like move-aways, it appears. These applications
challenge the non-moving parent and can negatively impact a child's access to that
parent, and disrupt parent-child bonding, if a holistic parenting plan under the
move-away regime is not developed.
Judge Schall bears the indignity of being reversed twice now in less than 30 days in
a reported appellate decision - quite a scolding. Family law is damned tough for
judicial officers, who are doing their best to protect children and weigh in consistently
with the cutting edge policies of current mental health science as well as their
in-house (FCS) advisors. The problem at present is that the opinions of MHP's
(mental health providers), and the wisdom of the reviewing courts, are in conflict. The
science of move-away as it affects families from the MHP perspective is still
developing, and it collides with certain cherished assumptions the law makes about
the rights of Americans, and specifically parents in California under our current
statutory scheme (see Family Code section 7501 and the Burgess case) to move
freely.
In both cases Judge Schall accepted (mostly) the independent opinions of outside,
court-appointed, mental health forensics and ignored the opinions of the Family
Court Services mediator - here the very same Lynne Waldman who made
recommendations in the F.T. case. FCS mediator Waldman's belief was that Jamie's
move away request should be granted, noting that Jamie had been L.'s primary
caretaker since his birth, that Jamie had been unable to find a job in San Diego and
was "living in poverty," and that Jamie appeared "to have a clear plan for the move."
Judge Schall now has two strikes against her for using judicial body language to
create a result that she felt was fair and appropriate, and her findings on the record
illustrate her dilemma. I'm reminded of my early youth playing pool (not so much) and
hoping if I twisted my body hard enough, the ball would fall in the pocket. Most of us
are doing the best we can. Trial judges, however, have a script they must follow.
In effect, Judge Schall's mistake was to refuse to permit a move-away by a Mom with
a 22 month old child who had indeed been the child's "primary caretaker since birth."
By effectively coercing Mom not to move by denying her move-away request, and by
ignoring the question of "in whose custody" the child's best interests were served" or
what arrangement should be imposed were Mom to move, Judge Schall committed
reversible error. The justices ruled:
"The court must decide de novo what physical custody arrangement would be in the
child's best interests, assuming that the requesting parent will relocate ." Therapist
Dr. Lori Love (we can't invent this name stuff) was appointed to evaluate the family
for the Court and opined that "[t]his examiner understands the importance of having
extended family around for support however this cannot be justified as being in [L.'s]
best interest[s] when it means removing him from a loving and capable father. Jamie
stated that she did not have an active father in her life and very much wants that to
happen for [L.] It would be virtually impossible for Mark to be an active father from
across the country." Dr. Love urged the child was too young for the move and went
on to recommend that Mom not "be permitted to move out of the County of San
Diego. At the same time, this forensic therapist was unwilling to recommend a primary
change in custody and assumed that the mother would in fact remain the primary
caretaker in San Diego county. She made no recommendations about what custodial
arrangement should become effective when or if the Mother moved.
The appellate justices ruled: "Where, as here, a parent who shares joint custody of a
minor makes a request to relocate the child in the context of an initial custody
determination, the trial court must decide de novo what physical custody
arrangement would be in the child's best interests. In making its custody
determination, the court must proceed on the assumption that the parent who is
making the request will relocate his or her own residence, regardless of whether the
court grants or denies the request. In this case, the court erroneously failed to
conduct its best interests analysis based on the presumption that Jamie would be
relocating to Minnesota."
The trial court adopted the recommendations of Dr. Love, even though Dr. Love
failed to address what should happen if and when Jamie relocates out of state. "The
very issue that Dr. Love was supposed to address is what parenting plan would be in
L.'s best interests, given that Jamie intended to move to Minnesota .... The court
misapplied the law in adopting Dr. Love's recommendations, because in making
those recommendations, Dr. Love incorrectly assumed that preserving the status
quo parenting arrangement was an option, even in the face of Jamie's expressed
intent to move...." At trial the Father's attorney asked Mother whether she would
move if the court were to deny her request to relocate, and Mom's response showed
she was tortured by the question. The appellate court ruled that this question by
counsel was improper - courts cannot consider whether the primary parent might
alter their plan of relocate depending upon how the court rules. As a trial lawyer this
is interesting to me, because this question is often used to telegraph a message to
the Court that implies it can deny the move because the moving parent evidently
doesn't want to move 'badly enough.'
Apparently the trial court suspected Mother's motives for moving might include
frustrating Father's access, but the court did not actually make such findings. "The
court's comments regarding Jamie's reasons for moving to Minnesota appear to
constitute second-guessing as to the wisdom of Jamie's decision to move (i.e.,
questioning the "necessity" of the relocation), as opposed to a finding that her
decision to move was made 'simply to frustrate the noncustodial parent's contact with
the minor child.'" There is no requirement that a parent who has the right to custody
of a child establish the necessity of a proposed move. "[E]ven where the court finds
that a move away request is being made in bad faith, the court must view this finding
as only one potential factor in deciding whether to allow the child's residence to be
moved; it does not permit the court to deny the move away request on the
presumption that in denying the request, the court can assure that the requesting
parent will not in fact move, and that the court can thereby maintain the status quo
parenting arrangement. That one parent may have been motivated, in part, to
relocate the child's residence by a desire to lessen the child's contact with the other
parent does not mean that the court should apply any
standard other than what would be in the best interests
of the child."
Union-Tribune endorses Judge Lisa Schall,
but reports that "No jurist in the state has a
less favorable record" than Judge Schall
but reports that "No jurist in the state has a
less favorable record" than Judge Schall
Judge Lisa Schall