“A calm steady hand” needed

Based on an agreement, the California Commission on Judicial Performance publicly admonished a judge for, in several hearings in a family law case, making comments that demonstrated embroilment, bias, and pre-judgement and that were discourteous and undignified, including accusing the parents of damaging their child and initiating a discussion about religion with a witness.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020).  The Commission emphasized:

Family law matters can be particularly fraught with emotion.  These situations are when a calm and steady hand, a respectful demeanor, and the appearance of neutrality are especially needed.  A judge may convey to family law litigants the judge’s concerns about the detrimental effects that high-conflict disputes may have on children, but may not do so by telling parents, in harsh terms, that the judge knows how their children will turn out.  Judges may also express their concerns about counsel’s conduct, but may not do so in a disparaging manner, or in a manner that is likely to interfere with the attorney-client relationship.  Judges may also question witnesses, but must comply with the canons’ mandates of patience, dignity, and courtesy when doing so.

From January 2017 through December 2018, in In re Marriage of Battilana, the judge presided over more than a dozen hearings on the mother’s request to relocate with the parties’ minor child to Oregon and for attorney fees and later an ex parte request about summer visitation and the child’s asthma medication.  On April 17, 2018, the judge issued a decision and order on the relocation/custody issues.  On May 29, the father filed for bankruptcy.

The Commission found that, during those hearings, the judge made comments that demonstrated embroilment, bias, and prejudgment.

  • The judge remarked that he was “picking sides,” “knew where the problems lie,” and “the parties are going to find themselves with nothing in the end.”
  • The judge stated, “I hate it that I have been brought into this personally. I hate it.  That is not the role of a judge, and frankly, it’s not the role of parties to involve a judge like has happened here.”
  • The judge told the parties, “On January 30th you went on my radar. By the time we got to July, I thought about you after work, unusual.  I was always watching for your case.  I even kept your file in my chambers for a while, for a long while.  When pleadings would come in, I would keep the pleadings.  You were always on my radar. . . .  And I had told you guys the path you’re going down, you shouldn’t be going down ad nauseam.  And that in the end what I fully intended was that someone is going to win and someone is going to lose, and it will be big time.  Judgment day is today.  One of you will win.  One of you will lose, and judgment day will be big time.”
  • The judge stated, “Way to go. Way to go.  I’m done.  Go off to trial, burn it all up.  Good luck.”

The Commission also found that the judge’s accusations that the parents were damaging their child were undignified and discourteous, could be reasonably perceived as reflecting bias or prejudice, and failed to promote public confidence in the integrity and impartiality of the judiciary.  The judge had said:

  • “[H]ow bad do you want to ruin your child.”
  • “And good luck to [the child], because it ain’t going to turn out well for her.”
  • “[S]he’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.”

In her testimony, the father’s mother appeared to criticize the mother for not taking the child to the doctor or calling the doctor when she was running a fever.  The following exchange then took place:

THE COURT:  Sure.  How do you think Jillian [the mother] got the prescription?THE WITNESS:  I have no idea, sir.
THE COURT:  Do you know whether Jillian is a pharmacist?

The Commission found that that question was sarcastic.

The grandmother also testified that, although she had heard disagreements between the mother and the father, she had stayed out of them.  Subsequently, the judge, while questioning the mother, made a remark about the grandmother “suffer[ing] a bout of amnesia.”  The Commission found that remark was gratuitous and noted that, although “judges may examine witnesses to elicit or clarify testimony, they must not become an advocate, comment on the evidence, or cast aspersions about, or ridicule, a witness.”

A retired licensed clinical social worker testified that she heard the child say her father was going to die and that a 2-year-old child does not understand death.  The judge then discussed with the social worker the purpose of religion and the promise of everlasting life, referencing the Bible.  For example, he stated:

In fact, it’s healthy for a person [to face death], at least in this trier of fact’s opinion since I’m having to rule on the best interest of your child.  Death is part of life.  In fact, it’s one of the certainties of life.  And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults also struggle with the permanence of death.  And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.  The Christian religion — I know dad goes to church, or at least I’ve heard testimony.  The Christian religion, you will have everlasting life, John 3:16.  If you go through that, what is the purpose for that for adults?  This is all commentary on the side.  It’s so that you don’t have to face the permanence of death.  Well, the truth of the matter is we don’t know.  Some of us have strong opinions one way or the other on that.  Wars have been fought over that, are continually fought over religion.  My concern is not as much the statement having been made unless there is solid proof that one of you is running around saying to the child your daddy’s going to die soon.  Your mommy is going to die soon.  If that’s happening, that is way, way out of bounds.  But you should both understand that children pick up on things and say things that sometimes just totally come out of the blue.  It could come from a Disney movie.  It could come from something from a book.  It could come from anywhere.  My bigger concern is not the child’s affect, whether she said it and the fact that she said it, that was easily addressed.  Rather than lawyering up and litigating the issue – let me say that again.  Rather than lawyering up and litigating the issue, you might want to sit down with your daughter, put her on your lap and say, sweetheart, I’m not going to die any time soon.  I love you.  I’m going to be around, but death is part of life.  We have pets that die.  We have flowers that die.  Mr. Cohen, are you listening?  What I want the parties to do i[s] in these situations, rather than blow this up and run to court and point fingers, the answer to this question, the answer to this issue was [to communicate].

The Commission found that these comments “improperly injected religion into court proceedings, and created an appearance of lack of impartiality . . . .  As the commission has previously stated, ‘The bench is not a pulpit nor soapbox for self-expression.  A litigant is entitled to assume that a judge’s attention will be focused entirely upon the relevant facts of his or her case, and that his or her cause will be judged dispassionately – without consideration of anyone’s religion. . . .”

At the first hearing after the father filed a bankruptcy petition, the judge stated that the father’s attorney “burned [him] every time he [could],” was “not professional,” was “undignified,” and “detracts from the quality of the bar.”  The Commission found that these remarks were undignified, discourteous, and reasonably likely to interfere with the attorney-client relationship.

The Commission also found that the judge had been discourteous and undignified by:

  • “Mocking the father’s name (‘it’s a battle’),”
  • “Accusing the parties of engaging in excessive litigation and of ‘churning fees,’”
  • “Remarking that an attorney was about to ‘come out of [his] underwear,’”
  • “Commenting about the parties ‘lawyering up,’ telling the parties they could ‘bleed out’ and to ‘grow up,’”
  • “Repeatedly referring to the case as ‘contrived,’ stating that it was a ‘nothing case,’” and
  • “Responding to the father’s question about whether he should follow the mother’s orders rather than the doctor’s, by stating, ‘What part of that is hard to understand?’ and ‘What you’re doing is bickering. What that was, that was a challenge to my order now masquerading as some sort of valid question.  No, it wasn’t.  It was just a challenge to the order.  It was bickering.’”

The Commission stated that the judge’s “misconduct was significantly aggravated” because, in 2014, he had received an advisory letter for misconduct in 2 family law matters.


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