72-page master compilation: color of law conspiracy - private party engaged in state action -...

112. Liability of private party, 12 Cal. Jur. 3d Civil Rights 112

2012 Thomson Reuters. No claim to original U.S. Government Works. 1

12 Cal. Jur. 3d Civil Rights 112

California Jurisprudence 3d

Database updated May 2012Civil Rights

Alys Masek, J.D.

VI. Interference with Civil RightsB. Violation of Rights under Color of State Law

Topic Summary Correlation Table References

112. Liability of private party

West's Key Number Digest

West's Key Number Digest, Civil Rights 1335

Liability under the Federal Civil Rights Act extends to a private party where the private party engaged in state action undercolor of law and thereby deprived a plaintiff of some right, privilege, or immunity protected by the Constitution or the laws of

the United States. 1 Thus, a private individual may be liable under the Federal Civil Rights Act if he or she conspired or entered

joint action with a state actor. 2 To be engaged in joint action, a private party must be a willful participant with the State or itsagents in an activity which deprives others of constitutional rights. A private party is liable under this theory, however, only

if its particular actions are inextricably intertwined with those of the government. 3 Whether a private party engaged in state

action as would support a finding of liability is a highly factual question. 4

In addition where a private party and the government exist via what amounts under the law to a symbiotic relationship, theprivate party may be held responsible as a state actor. In a symbiotic relationship the government has so far insinuated itselfinto a position of interdependence with a private entity that it must be recognized as a joint participant in the challengedactivity. Substantial coordination and integration between the private entity and the government are the essence of a symbiotic

relationship. Often significant financial integration indicates a symbiotic relationship. 5

Finally, an individual may become a state actor under the public functions test. Private activity becomes a public function onlyif that action has been traditionally the exclusive prerogative of the State. If private actors hold elections, govern a town, orserve as an international peacekeeping force, they have been held responsible as state actors. On the other hand, if private actorseducate maladjusted youth or resolve credit disputes, they have not been held to perform an exclusive prerogative of the State,

and thus, they have not been held responsible as state actors. 6

Illustration:

Foster care providers for a child who allegedly was improperly removed from her mother's home could not be held liable to themother under the Federal Civil Rights Act, given the absence of evidence that the providers were acting under color of state

law as county agents or employees. 7

Footnotes1 Brunette v. Humane Society of Ventura County, 294 F.3d 1205 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc,

(Aug. 23, 2002).
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112. Liability of private party, 12 Cal. Jur. 3d Civil Rights 112


2 Franklin v. Fox, 312 F.3d 423 (9th Cir. 2002) (referring to 42 U.S.C.A. 1983); Brunette v. Humane Society of Ventura County,294 F.3d 1205 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc, (Aug. 23, 2002).

3 Brunette v. Humane Society of Ventura County, 294 F.3d 1205 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc,(Aug. 23, 2002).




7 Mabe v. San Bernardino County, Dept. of Public Social Services, 237 F.3d 1101 (9th Cir. 2001) (referring to 42 U.S.C.A. 1983).

End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.
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1:4. DefendantsPrivate individuals and state action..., 1 State and Local...


1 State and Local Government Civil Rights Liability 1:4 (2d ed.)

State and Local Government Civil Rights Liability Database updated December 2011

Ivan E. Bodensteiner; Rosalie Berger Levinson

Chapter 1. Protecting Federal Rights under Section 1983 II. Coverage

Summary

1:4. DefendantsPrivate individuals and state action requirement

In addition to creating a cause of action against government officials, it is possible to bring suit against private individuals under 1983 either because their conduct is deemed to be state action or because they have conspired with government officials. As to the first theory, because most 1983 claims assert constitutional rights that entail a state action requirement, the under the color of law issue and the state action issue often merge.1 The Supreme Court has stated that where private individuals meet the state action requirement of the Fourteenth Amendment they will be deemed to be acting under the color of state law for purposes of 1983.2 In Flagg Bros., Inc. v. Brooks,3 a creditor acting pursuant to the U.C.C. self-help provision seized the plaintiffs property allegedly in violation of the Fourteenth Amendment Due Process Clause. Although an individual exercising his rights under state law is acting under the color of state law, the Court held that there was no Fourteenth Amendment state action. Several subsequent Supreme Court decisions have further limited the concept of state action by refusing to attribute private conduct to the state despite significant government involvement with the private entity.4 This trend is reflected in several lower court opinions holding that neither state regulation nor funding of a private entity will convert its conduct into state action.5 Further, neither government approval or acquiescence in the private conduct will suffice.6

Although the Supreme Court has been generally reluctant to treat the action of private parties as that of the state for purposes of the Fourteenth Amendment, and it has been less than clear in articulating a coherent doctrine, a review of Supreme Court precedent indicates that private parties may be sued under 1983 under the following theories: (1) Joint Participation: In Lugar v. Edmondson Oil Co.,7 the Supreme Court set forth a two-part test

whereby private individuals who act in joint participation with government officials will be considered state actors.

First, the Court explained that the deprivation must be caused by the exercise of some right or privilege

created by the State or by a rule of conduct imposed by the State or by a person for whom the State is



responsible.8 Second, the defendant must fairly be said to be a state actor.9 As to the latter, the Court inquires into

whether the defendant has acted together with or has obtained significant aid from state officials.10 The Lugar analysis was applied in Edmonson v. Leesville Concrete Co.11 to hold that a private litigants

race-based exercise of peremptory jury challenges in a civil action constitutes governmental action. Applying the Lugar standard several lower courts have found that private individuals or entities may be

viewed as state actors because of their involvement with government officials.12 On the other hand, many federal courts applying the Lugar analysis have concluded that a defendants action

was not attributable to the state.13 In several of these cases, it was held that the private individual did not truly act in concert with government officials.

For example, the mere fact that a private citizen files a complaint with the police department or asks that an

individual be arrested does not, without more, constitute the type of concerted activity required by Lugar.14 The Supreme Court decision in NCAA v. Tarkanian lends support to this narrow approach. The fact that the

NCAA promulgated regulations governing the state universitys athletic program, investigated alleged violations on the part of the university, and concluded that the university had to suspend its basketball coach or face sanctions did not justify the state Supreme Courts conclusion that the NCAA was acting under the color of state law.15

Reasoning that the NCAA and the state university acted more like adversaries than like partners, the Court

rejected the joint participation theory.16 (2) Conspiracy: The Supreme Court has held that where private individuals enter into a conspiracy with state

officials to deprive persons of their rights, they may be joined as defendants. In fact the Court held in Dennis v. Sparks17 that a private citizen who bribes a judge may be sued under

1983 even though in that situation the judge himself enjoyed absolute immunity from suit.18 Further, in Tower v. Glover19 it was held that although the actions of a public defender do not subject him to

liability, a public defender who conspires with state officials will be deemed to be acting under the color of law.20

Similarly, although federal officials may not be sued under 1983, federal officials acting in concert with

state authorities may be sued.21 Counsel should be cautioned that although the requirements of a conspiracy are fairly stringent, private

individuals who fit within the joint participation theory of state action may also be sued under 1983.22 Because of the overlap between the doctrines, some lower courts have narrowly construed the joint

participation theory to require a conspiratorial type of relationship between the state and the private parties.23

Others, however, have explicitly rejected the notion that evidence of a conspiracy is needed in order to sue private individuals whose conduct is deemed to be state action.24



(3) Compulsion or Significant Encouragement: Although, as noted, government approval or acquiescence in private conduct will not transform this conduct into state action, where the state actually compels the private party to engage in the proscribed conduct, 1983 liability will be triggered.25

(4) Government Function: The Supreme Court has held that a private party will be deemed a state actor

where it performs an exclusive, traditional public function.26 On the other hand, the Supreme Court has narrowly construed this doctrine to exclude private entities that

provide utility service,27 medical assistance,28 or education.29 Relying on the public function doctrine, lower courts have ruled that volunteer firefighters should be viewed

as state actors.30 Similarly, private parties who assist the police in carrying out their investigative functions will be bound by

constitutional norms.31 More difficult are the cases involving private entities who contract with the government to carry out official

functions. Because the government is increasingly privatizing the operation of jails and prisons, these cases are proliferating. In West v. Atkins32 the Supreme Court held that a private physician under contract with the state to provide medical services at a state hospital is acting as a state actor for purposes of 1983.

Generally, where the government contracts out official functions that implicate statutory or constitutional

duties, state action will be found.33 On the other hand, several cases have held that those who contract with the state to carry out state-sponsored

programs or to perform public functions do not necessarily become state actors for all of their conduct.34 Further, note that even where private parties are acting under the color of state law, difficult questions

remain as to whether private individuals or entities will be shielded by the defenses that protect government officials and entities.35

(5) Symbiotic Relation/Entwinement: The Supreme Court has ruled that where a private party enters into a

symbiotic relationship with the government, state action will be found. In Burton v. Wilmington Parking Authority,36 a private owner of a restaurant who leased space from a

governmental agency and who refused to serve African-Americans was held subject to suit under 1983 where both the government and the restaurant benefited from the lease arrangement.

The Court focused on the states overall relationship with the private actor and determined that the state had

insinuated itself into a position of interdependence with the private party.37 Since this 1961 case, the Supreme Court has never again relied on the symbiotic relationship doctrine to

support a finding of state action. Similarly, lower courts have consistently distinguished and narrowed Burton as a case where the government

was actually profiting from the racially discriminatory practices of the restaurant.38 Although the symbiotic relationship theory appears dead, the Supreme Court in Brentwood Academy v.

Tennessee Secondary School Athletic Association39 held that a nominally private statewide voluntary



association that governs sports among public and private secondary schools was a state actor because of the pervasive entwinement of public institutions and public officials.

The Court relied on several factorspublic schools predominated in the membership of the organization at

the time of the incident in question, public school officials held all slots on the governing bodies, members of the State Board of Education were assigned ex officio to serve as members of the governing bodies, and the organizations employees were eligible for membership in the state retirement system.

Further, the Court noted that there were no substantial countervailing reasons not to apply constitutional

standards to the Associations actions.40 Some lower courts have relied on Brentwoods entwinement theory to find state action.41 However, in many

cases the fact-intensive inquiry demanded by Brentwood has resulted in findings of insufficient evidence to support entwinement,42 or

(6) Judicial Intervention: In Shelley v. Kraemer43 the Supreme Court found state action where white

property owners sued in a state court to enforce a racially restrictive covenant and thus stop a sale between a willing buyer and seller.

The Court reasoned that the state court had interjected itself into the private dispute such that the judiciary

became the efficient, effective cause of the adverse treatment, thus subject to Fourteenth Amendment restrictions.44

Subsequent rulings have limited Shelley to its unique facts, namely judicial enforcement of racially restrictive

covenants.45

Practice Tip:

Although, as discussed earlier in this section, private individuals or entities may sometimes be sued as defendants under 1983, the rules governing liability of private entities is less certain. As discussed in 2:1 to 2:5, government officials may enjoy absolute or qualified immunity from damages. Further, as discussed in 1:6, 1:7, government entities cannot be held liable unless the injury was inflicted pursuant to a policy or custom and they are shielded from punitive damages. See 2:8. On the other hand, they do not enjoy qualified immunity. See 2:7. The Supreme Court in two cases, Wyatt v. Cole46 and Richardson v. McKnight,47 has ruled that private individuals do not enjoy the qualified immunity available to government defendants. It has not, however, provided guidance regarding private entities. Generally the lower courts have ruled that private entities are liable only if a policy or custom can be established.48 There is disagreement, however, on the immunity issue. While some courts have extended the Supreme Court rule denying municipal immunity to private entities,49 others have decided to award private defendants a good faith defense.50 There has been little discussion as to whether punitive damages should be available to private entities.51

Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

CCPCIVILRGHTS, 7:8. State action test, Cal. Civ. Prac. Civil Rights Litigation 7:8


Cal. Civ. Prac. Civil Rights Litigation 7:8

California Civil Practice Civil Rights Litigation Database updated October 2012

Judge Harold E. Kahn and Robert D. Links, Esq.

Chapter 7. Due Process of Law III. The Elements of a Due Process Claim

Summary

7:8. State action test

The issue of what constitutes state action has been the subject of vigorous litigation. [See, for example, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972); Adams v. Department of Motor Vehicles, 11 Cal. 3d 146, 113 Cal. Rptr. 145, 520 P.2d 961, 64 A.L.R.3d 803 (1974) and numerous law review articles. See, e.g., The State Action Doctrine and the Rehnquist Court, 25 Hast Const LQ 588 (1991)] For years, commentators have struggled to find consistency in the decisions defining state action for constitutional purposes. One commentator has labeled the courts treatment of the issue a conceptual disaster area. [See The Supreme Court, 1966 TermForward: State Action, Equal Protection and Californias Proposition 14, 81 Harv L. Rev. 69 (1967)] While the many state and federal decisions dealing with the concept of state action are difficult to reconcile, they have established several broad principles that help determine when a given act amounts to state action. To begin with, there must be a significant level of state involvement. [See Garfinkle v. Superior Court, 21 Cal. 3d 268, 146 Cal. Rptr. 208, 578 P.2d 925 (1978); Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 113 Cal. Rptr. 449, 521 P.2d 441, 65 A.L.R.3d 1266 (1974)] Often, state action consists of legislative action, such as the passage of statutes or regulations that improperly deprive people of life, liberty, or property without adequate procedural safeguards. [See, for example, Randone v. Appellate Department, 5 Cal. 3d 536, 96 Cal. Rptr. 709, 488 P.2d 13 (1971) (attachment statute ruled unconstitutional on procedural grounds)] However, state action can also consist of executive and judicial action. [Adams v. Department of Motor Vehicles, 11 Cal. 3d 146, 113 Cal. Rptr. 145, 520 P.2d 961, 64 A.L.R.3d 803 (1974)] Therefore, a key ingredient in finding state action is that the government must be a joint participant in the challenged conduct, even if only by way of ministerial actions. For example, the United States Supreme Court found state action present in a private, racially restrictive real estate covenant, because the covenant could not be enforced without the involvement of the Illinois courts. [Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948)] The contrary situation, where action can be taken solely by private parties without governmental assistance, yields the opposite result. Hence, the California Supreme Court refused to find state action in a case involving a private banks setoff of charge account debts against a depositors checking account. The court held that, in contrast to other prejudgment remedies, the banks setoff procedure required no act of assistance from state officials, and thus did not violate the federal and state Due Process Clauses. [Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 113 Cal. Rptr. 449, 521 P.2d 441, 65 A.L.R.3d 1266 (1974)] The governments participation does not have to be direct or all-encompassing in order to constitute state action for due process purposes. In a given case, private conduct may become so entwined with governmental action that it becomes subject to the constitutional limitations of due process. [See, e.g., Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967); Adams v. Department of Motor Vehicles, 11 Cal. 3d 146, 113 Cal. Rptr. 145, 520 P.2d 961, 64 A.L.R.3d 803 (1974)] The question in these cases is whether there is a sufficiently close nexus between the state and the challenged action so that
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the action may be fairly treated as that of the state itself. [Garfinkle v. Superior Court, 21 Cal. 3d 268, 146 Cal. Rptr. 208, 578 P.2d 925 (1978); see also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477, 8 Pub. Util. Rep. 4th (PUR) 1 (1974)] Often, this question turns on whether the state has encouraged or actively participated in the challenged conduct. Mere recognition by the state of private relationships does not meet the test. Nor does the fact that state action facilitates a private partys conduct. The state must be an integral participant in the conduct. [Garfinkle v. Superior Court, 21 Cal. 3d 268, 146 Cal. Rptr. 208, 578 P.2d 925 (1978)] Thus, for example, though the government may license certain conduct, such as the serving of liquor, it does not necessarily follow that state action occurs as the result of the licensees activities. [See, for example, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972)] It is important to remember that even where a large, institutional organization exerts substantial control over an important enterprise, there may not be state action. [See, for example, National Collegiate Athletic Assn v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 102 L. Ed. 2d 469, 50 Ed. Law Rep. 17 (1988) (acts of NCAA, which controls college athletics in United States, did not amount to state action); see also San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 107 S. Ct. 2971, 97 L. Ed. 2d 427, 3 U.S.P.Q.2d (BNA) 1145 (1987) (actions of United States Olympic Committee, a federally chartered nonprofit corporation, did not constitute state action)] In a case challenging Californias procedure for nonjudicial foreclosures of deeds of trust on real property, the California Supreme Court found that the procedure constituted private action exempt from the due process constraints of the federal and state constitutions. The court concluded that mere recognition of the legal effect of private arrangements between a lender and trustor is not sufficient to convert the acts of the lender or trustee into state action for Fourteenth Amendment purposes. The court also discounted the argument that the state encouraged nonjudicial foreclosure by acknowledging the legal validity of the title transferred thereby. [Garfinkle v. Superior Court, 21 Cal. 3d 268, 146 Cal. Rptr. 208, 578 P.2d 925 (1978)]

Practice Note:

At first glance, Garfinkle appears difficult to distinguish from Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948), in which the United State Supreme Court found state action in an equal protection context where there was solely private conduct, in the form of a restrictive covenant contained in a private sale agreement involving residential real estate. The only state action in Shelley was judicial enforcement of the parties contract, something virtually identical to the nonjudicial foreclosure at issue in Garfinkle. The two cases are distinguishable, however, in that Shelley involved the states participation in racial discrimination, something prohibited by the equal protection clause, while Garfinkle involved private foreclosures that did not involve any other constitutional right. This may also explain why the Garfinkle court did not cite Shelley in its state action analysis. Generally speaking, the California Supreme Court has utilized the federal standard in deciding whether there is state action for purposes of the California Due Process Clause. [See Garfinkle v. Superior Court, 21 Cal. 3d 268, 146 Cal. Rptr. 208, 578 P.2d 925 (1978); Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 113 Cal. Rptr. 449, 521 P.2d 441, 65 A.L.R.3d 1266 (1974) (implying state action requirement into California Due Process Clause, then following federal case law)]

Practice Tips:

The U.S. Supreme Court has enumerated at least seven approaches to determine if a private partys conduct amounts to state action. The approaches were summarized in Brentwood Academy v. Tennessee Secondary School Athletic Assn, 531 U.S. 288, 296, 121 S. Ct. 924, 148 L. Ed. 2d 807, 151 Ed. Law Rep. 18 (2001). As the court there explained, the activity of a private party may be state action when: 1) it results from the states exercise of coercive power; or 2) the state provides significant encouragement, either overt or covert; or 3) a private actor operates as a willful participant in joint activity with the state or its agents; or 4) it is controlled by an agency of the state; or 5) it has been delegated a public function by the state; or
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6) it is entwined with government policies or 7) when government is entwined in the management or control of the private actor. While these factors are important, the court also cautioned that no one fact can function as a necessary condition across the board for finding state action, or is any set of circumstances absolutely sufficient. Brentwood Academy v. Tennessee Secondary School Athletic Assn, 531 U.S. 288, 29596, 121 S. Ct. 924, 148 L. Ed. 2d 807, 151 Ed. Law Rep. 18 (2001). A relevant example of how a court analyzes a state action problem can be found in Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916 (9th Cir. 2011). In the Florer case, the plaintiff was a prisoner who complained that a private organization had violated his rights by not providing appropriate religious services. The court refused to find state action, noting that the inquiry begins with the presumption that conduct by private actors is not state action. [Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011)] The court did not find a close nexus between the private congregations actions and any particular state policy; moreover, the court also found that the plaintiff could not show that the defendant had exclusive dominion over the religious services that the state was bound to provide at the prison. The plaintiff failed to show that any law or policy restricted him from receiving a Torah, calendar, or rabbi visit from persons or organizations other than Defendants. [Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 925 (9th Cir. 2011)] While the defendants were under contract to provide certain services, they were not the exclusive avenue for the plaintiff to exercise his religious beliefs and because there was no joint activity and the action in question was not the public function of the state (nor could it be, given the strictures of the First Amendments Establishment Clause); hence, there was no state action. The case is a good discussion of the major factors to analyze in these cases.

Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

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TAGS: corrupion, carlsson, family, divorcecorp, sound_off, sacramento, judges, courts, comment, mcbrien GROUPS: My life, Sound off

The proof is now available to anyone for $20: the cost of the documentary film Divorce Corp, recently released on DVD, and also available by download at the iTunes store. In his first, full-length documentary film, director Joe Sorge meticulously documents the epidemic of corruption and collusion in family courts throughout the United States. And the Sacramento County system rises to the top of the toxic slurry pond.

A parade of litigants from Indiana, Tennessee, Ohio, California and other locales recount their nightmare experiences in child custody and other divorce-related court disputes. Retired judges, active attorneys, child custody evaluators and court reform advocates are interviewed over the one hour, 33 minute run time of the film.

In one compelling segment, Nevada County Superior Court whistleblower Emily Gallup reveals that state-level oversight and accountability of California family courts is effectively nonexistent. In a tacit admission, the Judicial Council and Administrative Office of the Courts declined Sorge's request to be interviewed and respond to Gallup's documented accusations.

But the locally well-known Ulf Carlsson case takes center stage and is woven throughout the movie, overshadowing the horror stories of other litigants. Judge Peter McBrien's clinically sociopathic, personal vendetta against Carlsson - which in 2012 6th District Court of Appeal Presiding Justice Conrad Rushing called a "judicial reign of terror" - is chronicled in all its perverse glory.

In the Divorce Corp clip above, Carlsson tells his harrowing story of personal and financial ruin at the hands of McBrien, who ruthlessly punished Carlsson for filing an appeal of orders issued by the judge. Sacramento family court litigants Andrew Karres, Mike Newdow and Robert Saunders, and Nevada County pro per Elena Haskins also make appearances in the movie criticizing virtually every aspect of local court operations.

Judges, attorneys, custody evaluators, the family law facilitator, and even the "child's best interest" legal standard are all held under the microscope and come away nakedly exposed and tarnished. Sometimes, only a clich will do: Divorce Corp must be seen to be believed.

Source: Sacramento Family Court News. Used with permission.
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Sacramento Superior Court Conflict of Interest Disclosure Violations Continue By LegalNews | Posted July 27, 2014 | Sacramento, California

Family Court Judges Continuing Failure To Disclose Judge Pro Tem Conflicts Violates Supreme Court Committee on Judicial Ethics Opinions Directive

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TAGS: courts, law, sacramento, judges, corruption, breaking_news, family, conflict GROUPS: CNN International, News

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An attorney and Sacramento Family Court News reader provided the California Supreme Court Committee on Judicial Ethics Opinions Formal Opinion at this link. The opinion provides yet another legal reference specifying that family court judges must disclose potential conflicts of interest on the record. At court hearings where no court reporter is present, the disclosure must be in writing, according to the CJEO.

In our original May, 2013 investigative report, we provided the legal authority, including Judicial Ethics Updates and Ethics Opinions from the California Judges Association requiring judges to disclose to opposing parties and attorneys when a judge pro tem attorney represents a client in court. As we reported at that time, in violation of state law family court judges were failing to make the required disclosure.

The violations remain ongoing, and hundreds of cases are tainted by the error. Sacramento County Superior Court Presiding Judge Robert Hight is responsible for the oversight of temporary judges, according to the CJA, the Code of Judicial Ethics and other authority. Click here to view our 2013 report.

Source: Sacramento Family Court News. Reprinted with permission.

Family Court Judge Pro Tem Conflict of Interest Disclosure Law - California Supreme Court Committee on Judi... by Sacramento Family Court News

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Sacramento Superior Court Designated Most Corrupt in U.S. by Documentary FilmSacramento Superior Court Conflict of Interest Disclosure Violations ContinueSacramento Superior Court Judge Misconduct Results in Landmark "Civil Gideon" AppealCalifornia Supreme Court Chief Justice Caught Using Highway Patrol for Personal Limo and Security Service

California Appellate Court Judge Vance Raye Implicated in Alleged Federal Racketeering Scheme By LegalNews | Posted December 30, 2014 | Sacramento, California

A Sacramento Superior Court watchdog group has posted online court records and other documents which they allege detail a racketeering enterprise operating in the local court system. Using court filings, court reporter transcripts, public records and other documentary evidence, members of the group say they have reverse engineered the structure and players of the scheme.

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"This package of evidence was compiled over four years, and includes records dating back ten years," said Ulf Carlsson, the spokesperson for the group. "Judges, court employees and lawyers involved in this criminal enterprise have been able to conceal it for a long time."

The group asserts that the documents show the scheme began in 1991 when two judges, Peter McBrien and Vance Raye, restructured the family court system with attorneys from the Sacramento Bar Association Family Law Section. The conspiracy has expanded and been ongoing since that time, according to the whistleblowers. Judge Vance Raye has since been elevated to the 3rd District Court of Appeal in Sacramento, and continues to assist the organization when cases involving the enterprise reach the appellate court level.

The goal of the judge-attorney partnership is to significantly reduce the caseload and administrative duties of full-time judges by effectively privatizing the Sacramento Family Court settlement conference program, according to the whistleblowers. The attorneys agreed to take over and run the program in exchange for kickbacks in the form of preferential treatment from judges when they appear in court representing clients.

"The attorneys ostensibly act as volunteers," said Carlsson. "But we have documented that the lawyers are in fact compensated with illegal kickbacks in the form of 'rubber-stamped' rulings and court orders for their clients, in addition to other perks."

In order to run the settlement conference program, the attorneys are designated as "judge pro tems," or temporary judges. In operating the settlement program, the lawyers reportedly use heavy-handed, unethical tactics to coerce couples going through a divorce to reach a settlement. When they do, the case is terminated and no further court hearings are required, significantly reducing the workload of full-time, state employed judges.

"The coerced settlements often result in an unequal division of community property, one-sided child custody arrangements, and unfair child and spousal support payment terms that don't comply with state law," Carlsson explained.

"In many cases, only one side has an attorney - who is a member of what we refer to as the 'cartel' - while the other side can't afford a lawyer and is self-represented. These cases are where the one-sided outcomes are the most severe," Carlsson said. "You have someone going through a traumatic divorce without a lawyer facing off against a spouse represented by a veteran family law attorney. On top of that, the party without a lawyer is forced into a
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garyonthenet January 8, 2015

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TAGS: vance_raye, breaking_news, sacramento_superior_court, rico_racketeering, 3rd_district_court_of_appeal, california_supreme_court, honest_services_fraud

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settlement conference run by a judge pro tem lawyer who often is a personal friend of the other attorney. As we've now documented, the outcome of these rigged settlement conferences is not fair, ethical, or legal. The conflicts of interest are required by state law to be disclosed, but never are."

The alleged criminal enterprise deprives the public of the federally protected right to honest government services, a crime under 18 USC 1346, includes predicate acts of mail and wire fraud, and thereby constitutes a RICO racketeering enterprise under federal criminal law (18 USC 1962), according to the watchdog group.

Carlsson said the judge-attorney collusion also violates a number of state laws as well. "The scheme results in unjust enrichment for the judge pro tem attorneys, constitutes unfair business practices, and implicates antitrust laws," Carlsson asserted. "Due to their consistent, virtually perfect success rate in obtaining favorable outcomes in court proceedings, the temporary judge lawyers have achieved a significant monopoly on the family law and divorce business in the greater-Sacramento area."

The 43-page set of documents compiled by the group is posted online at Scribd, and can be viewed at this URL: http://www.scribd.com/doc/251282897/Justice-Vance-W-Raye-Charged-in-Color-of-Law-Conspiracy-RICO-Racketeering-Scheme-in-3rd-District-Court-of-Appeal-Sacramento-Superior-Court-Sacramen

As bkain222 says, this happens all over the country, it only when they get to cocky with their power and get sloppy in covering their tracks, as in this
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Judge James Mize Misconduct: Criminal Acts by Judge Pro Tem Condoned by Supervising Family Court JudgeFamily Court Whistleblowers Charge Oversight and Accountability of Attorney Misconduct Nonexistent Under Leadership of Judge James Mize

By Cathy Cohen (Open Post) July 11, 2014 at 2:10pm

Sacramento Family Court Supervising Judge James Mize Fails to Effectively Train, Supervise and Discipline Temporary

Elk Grove Find Your Patch 38 Partly Cloudy Home All Topics Opinion
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Judges, according to an Unsettling New Report from Sacramento Family Court News

Whistleblower leaked records from a Sacramento Family Court case indicate that criminal acts were committed by family law attorney and temporary judge Paula Salinger against an indigent, unrepresented, pro per family court party. The pro per was a victim and witness in a family court criminal contempt case filed against a Salinger client, and the pro per also is a domestic violence victim, according to court records.

Family court reform advocates say the case is another example of the complete lack of oversight and accountability of attorneys who engage in egregious misconduct against disadvantaged, pro per litigants who can't afford legal representation.

As Sacramento Family Court News previously reported, Salinger has been caught in several scandals including filing counterfeit documents in court, violating state laws and court rules, illegally attempting to obtain a final divorce judgment while an appeal in the same case was pending, and obtaining a questionable waiver of the requirements to become a temporary judge.

Attorney Collusion with Judge Matthew J. Gary Documented by Court Records

Salinger also obtained from controversial Judge Matthew
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Gary an illegal order for more than $10,000 in attorney fee sanctions against the same contempt and domestic violence victim. To benefit Salinger, Gary also illegally attempted to use fee waiver law to obstruct an appeal of several orders he issued for Salinger in the same case. Salinger's firm, Woodruff, O'Hair, Posner & Salinger Inc., previously was sued for legal malpractice in a case alleging more than $1 million in damages.

The new, criminal allegations first surfaced last month on social media, including Facebook and Twitter, where several posts linked to supporting documents posted at Docstoc and Calameo. Due to the serious nature of the claims, SFCN did not report on the assertions pending authentication of the records. SFCN has now verified the accuracy of the documents and posted the complete set at our Scribd account. The Scribd document set also is embedded with the original articleat Sacramento Family Court News.

Obstruction of Justice Crimes

The records indicate that Paula Salinger, a Sacramento County Superior Court sworn temporary judge and officer of the Sacramento Bar Association Family Law Executive Committee violated California Penal Code sections prohibiting witness intimidation and deceit of a witness. Under California law, both offenses are designated as obstruction of justice crimes.

The circumstances also reveal new collusion between Salinger andJudge Matthew Gary. As reflected by page one of the document set posted at Scribd and SFCN, at an unrelated court hearing held three weeks before the date calendared for the
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contempt case, in open court Gary disclosed to Salinger that he would deny the contempt claims, even though Salinger had yet to file a response to the contempt pleading. Salinger then used the unlawful disclosure in a threatening letter to the unrepresented opposing party:

"As the court indicated at the hearing on October 27, 2010, your Order to Show Case (sic) Re: Contempt does not contain sufficient factual basis to sustain the contempt. At the hearing on November 17, 2010, I intend to request the court dismiss the matter and order sanctions pursuant to Family Code section 271 for proceeding with the contempt...

...Should you provide written proof (a copy of a confirming letter to the court) by Monday, November 1, 2010 at 5:00 p.m. that the above matters have been dropped, I shall withdraw my requests for sanctions pursuant to FC 271," Salinger wrote in a letter to the contempt victim and witness. Page one of the document set posted at Sacramento Family Court News is an authenticated copy of the threatening letter.

Contempt Filing Against Salinger Client Triggers Criminal Acts

The alleged criminal acts were committed after the indigent, unrepresented pro per filed a criminal contempt of court allegation against a Salinger client. The contempt filing charged several violations of the Standard Family Law Restraining Orders, which are issued in all divorce proceedings.SFLRO's are automatically ordered against both parties when a dissolution of marriage is initiated in family court.

As page one of the document set posted at SFCN reflects,
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Salinger illegally threatened the victim and witness with financial harm in the form of attorney fee sanctions if they did not drop the criminal contempt case. As page three and four reflect, Salinger concurrently filed an illegal responsive declaration in the contempt case with a demand for $1,000 in attorney fee sanctions against the contempt victim and witness.

As the page two legal reference reflects, under California law the response to a contempt allegation may only be used to answer the contempt charge, or move to discharge the contempt on appropriate grounds. Requesting "affirmative relief," including attorney fee sanctions, in response to a contempt allegation is prohibited by law. As page five of the document set indicates, Salinger's threat coerced the victim and witness to drop the contempt matter.

Witness Intimidation - Influencing a Witness by Fraud

As reflected by pages 6-16 of the document set posted at SFCN and Scribd, Penal Code 133 makes it a crime to use fraud or deceit to affect the testimony of a victim or witness. Penal Code 136.1(a) & (b) make it a crime to maliciously prevent or discourage a witness or victim from giving testimony at a judicial proceeding.

Salinger has not been charged with either crime, disciplined by the State Bar, Supreme Court or Judicial Council, or otherwise held accountable for the misconduct. Pro per advocates call the absence of accountability more proof that attorneys are effectively immune from punishment for egregious misconduct against unrepresented pro pers who can't afford a lawyer, and make up 70 percent of family court
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litigants.

Civil law statutes, including wrongful use of civil proceedings, and abuse of process may also apply to Salinger's lawbreaking acts. SFCN is completing an in-depth investigative report on the criminal contempt incident and other troubling proceedings and documents from the same case. The report will be published by SFCN in the near future.

Family court reform advocates say the latest revelations are additional proof that the court operates effectively as a racketeering enterprise that deprives the public of the federally protected right to honest government services. Court watchdogs assert and have documented that judge pro tem attorneys receive kickbacks in the form of rubber-stamped orders and other preferential treatment from family court judges and employees.

The divorce lawyers who also hold the Office of Temporary Judge operate the family court settlement conference program in exchange for the kickbacks and emoluments, watchdogs charge. California Penal Code 94 makes receipt of an emolument by a judicial officer a crime, and several federal criminal statutes prohibit similar conduct. The 2014 documentary film Divorce Corp designates Sacramento Family Court as the most corrupt in the United States. For our complete coverage of the movie, click here.

Click here to view the original article at Sacramento Family Court News. SFCN is a nonprofit journalism organization publishing investigative reporting, news analysis, opinion and satire about the local family court system.
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Judge James Mize Apologist Shifts Blame for Court Corruption to Judicial Council FormsProfessor John E.B. Myers, a family law instructor at University of the Pacific McGeorge School of Law, pens an intellectually dishonest defense of Sacramento Family Court corruption and Supervising Judge James Mize.

By CATHY COHEN (Open Post) July 23, 2014

Sacramento Bee Editorial Reveals Family Court Cronyism Reaches Law School Academic Community

In a laughably inaccurate editorialpublished by the Sacramento Bee, McGeorge School of Law family law professor John E.B. Myers redefined the meaning of the out-of-touch, ivory tower academic. Among other clueless assertions, Myers made the bizarre, demonstrably falseclaim that:

Sacramentos family court, under the wise leadership of Judge

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James Mize, serves the community well.

Family court watchdogs have collected and catalogued overwhelming evidence that Judge Mize provides anything but wise leadership, and that the court which operates essentially as an organized, criminal enterprise serves only a select, exclusive group of judge pro tem lawyers.

The community at large, and especially those financially disadvantagedfamily court users without an attorney, are subjected to second-class statusunder an illegal two-track system of justice.

Rationalization FAIL: "Unworkable Form-Driven System" Responsible for Injustice

Myers went on to attribute what in fact is incompetence and corruptionby family court judges and employees to incomprehensible Judicial Council family court forms:

Today, there are more than 200 family-law forms, making the law incomprehensible to anyone but an expertThe amazing thing is that so many lawyerless litigants somehow navigate the labyrinth of financial and other forms to accomplish their goals in family court. Countless others simply give up. Many try their best but do not receive justice. Not because the people at family court dont care, but because our form-driven family law system is unworkable, Myers wrote.

News Flash Professor Myers: Real world, lawyerless family court users will be happy to explain to you that the people at family court not only dont care, the people at family court knowingly and routinely collude with a secretive, insular
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groupof for-profit, private sector judge pro tem divorce lawyersto deprive lawyerless litigants of their children, income and assets, and civil and constitutional rights.

Click here to view a list of the divorce lawyers who also act as judge pro tems and run the family court settlement conference program in exchange for favorable treatment by judges and court employees.

The number of family law forms is not why lawyerless litigants do not receive justice, and the claim that there are 200 family-law forms is a misleading red herring. But, nice try, professor.

Few, if any, uncontested divorce cases require more than 6-8 forms in total to complete a divorce, and a typical family court law and motion hearing requires just 1-3 forms.

As the recently released documentary film Divorce Corp makes clear, lawyerless litigants do not receive justice because of rampant, garden variety corruption and collusion between attorneys and judges.

University of the Pacific McGeorge School of Law Alumni Discredit the Legal Profession

And, in an ironic coincidence, many of the most corrupt, unethical attorneys in the group of attorneys from the cases chronicled in Divorce Corp are graduates of McGeorge School of Law where Myers has taught family law and other courses since 1984.

In addition, two McGeorge alumni not included in the movie have been disbarred by the State Bar of California: divorce lawyer Scott Kendall (for multiple acts of misconduct), and
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