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Embattled judge to give up role in family court

By Guy Ashley © 2000 Marin Independent May 7, 2000

Engulfed in a storm of criticism and a citizens recall effort, Marin Superior Court Judge Michael Dufficy has decided to leave the family law post he has held for nearly seven years, according to court officials.

Dufficy made the decision at a meeting of Marin judges at the end of April, according to John Montgomery, administrator of the county courts. The judge will relinquish his post as head of the court's family law division at the end of the year and will hear civil cases beginning in January.

The move was prompted more by a trend emerging in the courts statewide - in which judges are being encouraged to change assignments more frequently - than by any community unrest about judicial decisions in Marin, Montgomery said.

"We're not reacting to anything," he said. "We're trying to set up a system of proactive management of the courts."

Dufficy was not in court Friday and could not be reached for comment.

His move to the civil courts is one of several changes in the courts that will occur next year. Judge John Sutro will move to family law after several years in the criminal courts; Judge William McGivern, meanwhile, will move from civil to criminal cases.

Montgomery said Dufficy's decision to move out of family law was entirely his own - just as he had decided year after year to stay in family law.

Dufficy decided at the beginning of the year to remain as head of the Superior Court's family law division. But the judge admitted in an interview in March that he was reconsidering, in the wake of an outside investigator's report that blasted the way divorce and child custody cases are handled in Marin.

"Maybe somebody else should deal with this can of worms," Dufficy said in an interview at the time.

The blistering report by New York investigator Karen Winner recommended the immediate suspensions of Dufficy and court Commissioner Sylvia Shapiro for what Winner called a pattern of family-law decisions in which "the outcomes didn't match the evidence."

Winner was paid about $10,000 by a group of citizens - including a former civil grand jury member - who said they were disturbed by the number of complaints they had heard about unjust decisions in the family courts.

The criticism contained in Winner's report apparently snowballed. Last month, a larger group of citizens angry about court decisions launched an effort to recall Dufficy and two other Marin judges.

In the earlier interview, Dufficy denied wrongdoing and said the criticism of him was a consequence of divisive divorce and custody cases. Family law disputes "are probably the most unpleasant and difficult cases that come before a judge," Dufficy said.

Jean Taylor of San Rafael, one of the citizens who commissioned Winner's report, said she believes Dufficy's decision is an encouraging sign. Rotating judges is a good idea, she said, because "the more you have new judges circulating through, the more possibility you'll see newer, fresher ideas about how to manage the family court."

"I'm sure it's an extremely difficult job and I know it's not a position the judges relish, but I do think it can be done better than it's been done lately," she said.

Contact reporter Guy Ashley via e-mail at

 

Judging family-law jurists

Scott Winokur
OF THE EXAMINER STAFF
San Francisco Examiner 5/7/00
 

 

Recall effort targets trio on Marin bench for alleged favoritism

The normally contentious atmosphere of the state's family law courts has risen to a new level of rancor in Marin County, where three judges who hear child-custody cases have been targeted for recall.

The move by a group of angry parents came late last month in the wake of a private investigator's report accusing some family-law judges of gross misconduct and confirmation by residents and authorities that the FBI and district attorney have been questioning people critical of the local bench.

Behind the legal fracas are emotional disputes that have left parents without their offspring, life savings or current means of support - but with longstanding grievances against the bench.

The parents uniformly accuse the judges of favoring a small circle of highly compensated lawyers and court-appointed experts, and consistently ruling for financially powerful litigants, to the detriment of children and poorer parents.

"I have had all the doors closed to me," said Sharon Shea, who lives in a San Rafael trailer park on $750 a month after losing her two children.

Shea said she complained to the FBI and wrote to Sens. Barbara Boxer and Dianne Feinstein about the alleged unfairness of her case, which was heard by Judge Michael Dufficy. She got nowhere.

Yevrah Ornstein of Woodacre, who lost his child in a custody dispute after spending nearly half a million dollars, said he received two typed death threats that he turned over to the FBI. Since 1997, Ornstein has been among the courts' most vocal critics.

"What I said to the FBI is that I have no enemies in this world other than people who know I have been active in trying to reform the family-law court system," he said.

Ornstein was one of several parents who paid $12,000 for the private investigator last year. Shea joined with other parents to start a petition drive that could force a recall vote next April on Dufficy and two other judges, Lynn Duryee and Terrence Boren.

A fourth jurist - family law Commissioner Sylvia Shapiro-Pritchard - also figures in the controversy, but can't be recalled because she was hired by other members of the bench.

'Parents who are unhappy'

The recall follows a Marin County Bar Association survey that elicited harsh criticism of Dufficy and Shapiro-Pritchard, and at least five complaints about Dufficy to the state judicial watchdog agency, the Commission on Judicial Performance.

A commission spokeswoman said it wouldn't confirm or deny complaints or investigations. But a letter to one of the complainants, Sylvia Graves of Novato, confirmed at least one investigation. There is no indication any complaint has been upheld.

Dufficy declined comment. In a written response to the recall filed with the Marin registrar, he said: "This . . . was engendered primarily by parents who are unhappy with my decisions . . . When these decisions have been appealed, all have been affirmed . . . "

A spokeswoman for Shapiro-Pritchard said she would comment if encouraged to do so by John Montgomery, executive officer of the Marin courts. But Montgomery said there was "reluctance" to have members of the county bench comment on "pending matters."

Shapiro-Pritchard had ruled in a hotly contested case involving the teenage daughter of a local lawyer with extensive connections in the county legal profession.

In 1995, the commissioner awarded custody of the child to her father despite allegations by a Los Angeles Juvenile Court social worker that supported her claims of mistreatment at his hands.

Three years later, the father pleaded no-contest in Los Angeles Superior Court to a Welfare and Institutions Code charge of using inappropriate parental discipline and a judge there ultimately awarded custody of the girl to her mother.

Duryee and Boren also were accused of misconduct in child-custody cases by people behind the recall drive. Both said the charges were false.

"Judges must be free to render fair decisions, without fear of untrue and biased attacks," Duryee said in a written response.

In his reply, Boren said that he had conducted all the proceedings in his courtroom "fairly, impartially and with proper and due regard for the rights of all the participants."

FBI probe alleged

Critics asserted that Dufficy and other local jurists have attracted the attention of the FBI. The FBI declined comment.

"I can verify there's an investigation. I was in touch with the FBI yesterday," Martin Silverman, former acting chair of the county's civil grand jury, said April 21.

However, Shea said that while the FBI was once interested in the case, it may have dropped it.

"I talked to the FBI about gross negligence in the courtroom," said Shea. "The last time I talked to them was in October or November. They said don't bother sending in more information. That could have meant they weren't going to investigate or they had enough. They prompted us to do what we could without their direct assistance."

In an unusual twist, Silverman said he has been informed that he is under investigation by the Marin County district attorney's office.

Silverman said the nature of the probe was not disclosed to him, but he believed he was suspected of having leaked confidential information about Dufficy and Shapiro-Pritchard to Marin residents.

He said he assumed this stemmed from a civil grand jury investigation of the courts in which he was involved three years ago. The probe was halted after several weeks when the county counsel's office told the panel it lacked authority to investigate judges.

Marin District Attorney Paula Kamena confirmed that Silverman is the target of an investigation she is leading. She declined further comment.

Lawyer poll was critical

Dufficy, 61, was a former Marin County deputy district attorney and a longtime defense attorney who represented prominent clients, including "San Quentin Six" murder defendant Fleeta Drumgo and former San Francisco Sheriff and Assessor Richard Hongisto. He was appointed to the bench in 1990 by then-Gov. George Deukmejian, a Republican, whose campaigns he had led in Marin.

In a 1999 judicial performance survey by the Marin County Bar Association, Dufficy, then presiding judge in the family law courts, was rated as needing improvement by about 25 percent of the respondents in two areas, preparation and consistency in rulings.

He was also said by more than 20 percent to need improvement with regard to the fair and equal treatment of all parties. Nearly 10 percent accused him of actual bias.

Fifty of 60 written comments were negative, with several respondents claiming Dufficy favored men and certain lawyers.

"Judge Dufficy appears to defer to rich white male politically active people," one lawyer said.

Shapiro-Pritchard, 55, had been in private practice specializing in divorce until appointed commissioner by Marin judges in 1988.

She was rated as needing improvement by 22.8 percent to 36 percent in seven areas: treatment of parties in court, courtesy, demeanor, patience, promptness in issuing written decisions, punctuality and efficient management of courtroom time.

Twenty-nine of 41 comments about her were negative. Five accused her of favoring men in her courtroom.

Private report ripped judges

On Feb. 28, an independent journalist, consultant and former New York City consumer affairs policy analyst, Karen Winner, issued the results of a three-month investigation of the Marin courts. The probe had been financed by Ornstein, Silverman and other critics of the family-law courts.

Winner said she had conducted 40 interviews and examined more than 3,000 pages of records. Her findings made no pretense of impartiality. Among them:

Dufficy had "hidden" financial ties to local law firms through his wife, Penelope, a legal secretary and paralegal who had worked, for varying periods of time, at dozens of county law offices.

Dufficy told the Marin Independent Journal after the report was issued that he did not routinely disclose his indirect links to the firms through his wife unless it was relevant to the case before him.

Both Dufficy and Shapiro-Pritchard made rulings that channeled alimony and child support funds to attorneys who were their "cronies" and otherwise showed "gross favoritism" to "certain litigants and lawyers."

Both approved "fee-gouging by experts and court appointees."

Dufficy denied the charges, attributing them to the ill will of litigants and lawyers. Shapiro-

Pritchard made no comment.