by Kathryn Joanne Dixon © 6/11/07

On May 31, 2007, the California Supreme Court took the Contra Costa County Superior Court judges to the woodshed over their decision to reduce Constitutional due process for family law litigants. The Superior Court enacted a local rule which essentially required litigants to present all their evidence by written declarations, not by live testimony at trial.

Jeffrey Elkins and his wife Marilyn Elkins went to trial before Judge Barry Baskin regarding the dissolution of their marriage. Elkins represented himself and his wife employed an attorney. The only issue at trial was the division of property. Jeffrey Elkins failed to fully comply with Local Court Rule 12.5(b) (3) and the trial scheduling order because his declarations failed to identify all of his exhibits and their evidentiary foundations. Judge Baskin denied his request to testify to establish an oral foundation at trial for the declarations introduction into evidence. Judge Baskin also denied his request to submit direct oral testimony. Marilyn Elkin’s attorney declined to cross-examine. With most of his evidence thus excluded, Mr. Elkins realized he could not adequately present his case, and rested. Judge Baskin then awarded and divided the community assets solely on the evidence presented by Marilyn Elkins and her attorney.

Elkins applied for a peremptory writ of mandate or prohibition to the First District Court of Appeal.  There it was summarily denied. However, the Supreme Court granted review and issued an order to show cause directed at the following issue: “Are Contra Costa County Superior Court's Local Rule 12.5(b) (3) and the trial scheduling order in the present case, which limited, among other maters, the form of testimony and the presentation of evidence in this family law proceedings, consistent with constitutional principles and with statutes governing trial court procedures and the adoption of local court rules?”

At the hearing before the Supreme Court on May 31, 2007, Elkin’s appellate attorney Garrett C. Dailey, an Oakland sole practitioner, started his argument by dropping a bombshell. He alleged all the declarations required by the Contra Costa Rule to be submitted at trial are inadmissible hearsay! Courts may use declarations for purposes of pre-trial motions, Dailey argued, but not at trial, unless there is an exception to the hearsay rule.

Attorney Dailey implied that family law litigants have been going to trial using inadmissible hearsay declarations since 2005. Are all the trial court judgments therefore erroneous and subject to reversal?

Justice Joyce L. Kennard immediately focused on what Constitutional due process is due to family law litigants. She cited In re Adair(9th Cir. 1992) 965 F. 2d 777 and its three part test to determine what due process is required:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Attorneys for the Contra Costa County judiciary had cited the 9th Circuit opinion in In re Adair because it limited due process just like the Contra Costa County Local Rule. The court held that a bankruptcy court's standard procedure requiring that direct testimony be presented by written declaration, followed by oral testimony on cross-examination and on redirect, did not violate Rule 43(a) because procedure "permits oral cross-examination and redirect examination in open court and thereby preserves an opportunity for the judge to evaluate the declarant's demeanor and credibility." The Contra Costa Local Rule at issue in the Elkins case allowed cross-examination of the declarant regarding the contents of his or her declaration.

Justice Carol A. Corrigan immediately downplayed the applicability of the In re Adair case to the Elkin's dissolution case, stating that bankruptcy is a specialized field of law.

Attorney Dailey asserted that an objective analysis of due process should be required in the Elkins case because when credibility of the declarants is at issue, there is a risk that litigants may be erroneously deprived of their interest in a fair trial if judges cannot assess that credibility during oral testimony.

Justice Kennard agreed that dissolutions are often highly contested and credibility is at issue.

Attorney Dailey said litigants can be untruthful and the risk of deprivation of a litigant’s rights to discern the truth is high if the litigants cannot utilize direct testimony on oral examination with oral cross-examination. He noted that declarations are often written by attorneys.

Justice Kennard cited Mathews v. Eldridge, 424 U.S. 319 (1976) and quoted the U.S. Supreme Court: “Where credibility and veracity are at issue, written submissions are a wholly unsatisfactory basis for decision.”

Justice Marvin R. Baxter noted that income and expense declarations are admissible in contested child support motions prior to trial.

Attorney Dailey countered that such declarations should not be admitted at trial even though declarations are allowed in pre-trial motions and applications in family law to obtain temporary orders. He said that there was “not one word of oral testimony” at the Elkins trial.

Justice Carlos R. Moreno questioned whether or not the Contra Cost Local Rule adequately provided for the opportunity to test credibility because it allowed litigants to cross-examine declarants regarding their declarations?

Attorney Dailey responded that there are two reasons the declarations filed pursuant to the Local Rule are hearsay. First, there is a psychological reason because the litigant wants to “tell his story” and not rely on a mere declaration. Second, the judge “wants to hear the story.” Cross-examination regarding a declaration cannot cure this.

Justice Corrigan said it appears that the Contra Costa Local Rule does away with 100% of direct oral testimony and only allows oral cross-examination regarding the declarations.

Chief Justice Ronald M. George stated that having family law litigants file “voluminous documents” pursuant to the local rule may not be effective. He said, “Efficiency does not countermand fairness.” The Chief Justice stated the Local Rule goes against the California Rules of Evidence. He gave some examples:

Evidence Code Section 711. At the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.

Evidence Code Section 780. Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a)  His demeanor while testifying and the manner in which he testifies.
(b)  The character of his testimony.
(c)  The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
(d)  The extent of his opportunity to perceive any matter about which he testifies.
(e)  His character for honesty or veracity or their opposites.
(f)   The existence or nonexistence of a bias, interest, or other motive.
(g)  A statement previously made by him that is consistent with his testimony at the hearing.
(h)  A statement made by him that is inconsistent with any part of his testimony at the hearing.
(i)   The existence or nonexistence of any fact testified to by him.
(j)   His attitude toward the action in which he testifies or toward the giving of testimony.
(k)  His admission of untruthfulness.

Evidence Code Section 1200. (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.

Chief Justice George noted that Code of Civil Procedure Section 2009 provides for use of declarations in regards to motions, not trials:

2009. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.

The Chief Justice asked pointedly, "Should all these sections of the Evidence Code be disregarded in family law courts because of the Contra Costa Local Rule?"

Attorney Jon B. Eisenberg, of Eisenberg & Hancock, Oakland, took the podium next. He represented the Contra Costa County Court. He stated that although declarations are hearsay, the right to cross-examine declarants about their declarations is sufficient for purposes of due process. He said “demeanor” is not the only thing.

Justice Corrigan challenged him, “You can’t pick and choose – you can’t say don’t look at demeanor.”

Attorney Eisenberg then cited other proceedings in which declarations are used, rather than oral testimony, such as motions regarding jury misconduct and post-judgment motions.

Justice Ming W. Chin asked, “Should civil courts adopt trials by declarations?”

Eisenberg said all direct testimony is contained in the declarations according to the Local Rule. He pointed out that the new 2007 Rule 12.8 F -1(a) has a “good cause” provision which may allow some live direct testimony, whereas the Local Rule at the time of the Elkins case allowed no direct testimony.

2007 Rule 12.8 F -1(a): “All direct testimony shall be in the form of initial declarations filed and served on the opposing party…. Absent good cause, the scope of any live direct testimony is limited to the scope of testimony contained in the declaration.

Eisenberg said that the purpose of the Contra Costa Local Rule is to encourage pro per litigants to tell their story by using declarations.

Justice George said firmly that it is more difficult to go through these hoops and hurdles for pro pers. 75% of all family law litigants in Contra Costa County are in pro per. How can they go through these detailed requirements and lay foundations for exhibits, and then deal with draconian sanctions. The judiciary cannot favor pro per litigants. However, these rules can have a worse impact on pro pers.

Attorney Eisenberg then attacked Jeffrey Elkins. He said Elkins was prepared for trial the first time he went to trial on some issues, and then at the next and last phase of the trial conducted by Judge Baskin, he was given a break by the Judge so he could try to determine how to introduce his exhibits, but he chose to rest his case.

Justice Corrigan stated, referring to Contra Costa County Superior Court, “This is a good trial court, a good bench. The question is who makes the rules? Can they just change the rules?”

Attorney Eisenberg said the purpose of the local rule is to get the pro per ready for trial.

Justice Chin asked how does it really help when the pro per must get through mind-boggling rules?

Attorney Eisenberg persisted: We are helping get them through and the amended 2007 rule will let litigants “tell their story”.

“What a concept!” Justice Corrigan said sarcastically.

Attorney Paige Leslie Wickland of Fancher & Wickland, San Francisco took the podium to represent Marilyn Elkins, the real party in interest.

Attorney Wickland stated that courts of equity always try cases by declarations and that the family law court is a court of equity.

Chief Justice George said, “What is more basic than the opportunity to tell one’s story in a trial of dissolution of marriage or child custody?”

Attorney Wickland said, “But these rules do allow one to tell one’s story.”

Justice Kennard said credibility of witnesses is important in dissolutions and child support cases. She repeated the language from Mathews v. Eldridge, 424 U.S. 319 (1976: “Where credibility and veracity are at issue, written submissions are a wholly unsatisfactory basis for decision.” Justice Kennard questioned whether there would be a problem assessing credibility and veracity in a trial by declarations? It is crucial, she said, for a trial court to observe demeanor to determine truth.

Attorney Wickland persisted in maintaining that credibility and veracity could be assessed by use of the declarations because the litigant could cross-examine the declarant and if, according to the new rule, good cause is shown, a litigant could testify in addition to his or her declaration. Attorney Wickland said Alameda County and San Francisco are utilizing declarations to some extent in family law cases. She said that Jeffrey Elkins just rested his case and did not bother to engage in cross-examination of his wife regarding her declarations. He “forfeited his right to complain”.

Justice George said Jeffrey Elkins was not allowed to testify to establish a foundation for his exhibits.

Attorney Wickland said Jeffrey Elkins did not want to tell his story.

Justice Kennard commented that Jeffrey Elkins was not an attorney.

Chief Justice George asked, “Should it count against him that he did not understand the rules of cross-examination?”

Attorney Wickland asserted that Elkins was an “expert in litigation” and had introduced exhibits in prior proceedings. She stated the Judge Baskin gave him a break in the proceedings to allow him to try to rethink how he could introduce his exhibits. The trial judge said, “Go one step at a time.” But, she said, Jeffrey Elkins wanted to go home.

Chief Justice George said, “Evidence Code Section 780 allows demeanor to be assessed to determine credibility. There is nothing more important in people’s lives than a dissolution of marriage. It’s more important than any other civil proceeding.”

Attorney Wickland countered, “If oral direct testimony is mandated, there will be a calendar jam in Contra Costa County courts.”

Chief Justice George said, “Then we should get more resources rather than let litigants suffer the burden.”

Attorney Wickland said “Lovely! In the meantime we must do something.”

Attorney Dailey took the podium again. He denied that Jeffrey Elkins “threw in the towel” or “played fast and loose with the rules”. The transcript, Dailey said, showed Jeffrey Elkins was frustrated. He tried to put two exhibits into evidence. He tried to testify that one exhibit, a letter by his wife had an evidentiary foundation. Judge Baskin excluded it because the evidentiary foundation was not set forth in a written declaration by Jeffrey Elkins.

Chief Justice George stated, “There was an abdication of discretion, an abuse of discretion here.”

Attorney Dailey said, “Jeffrey Elkins needs a reversal to get a new trial – apparently under new rules. The old local rules cut him off at the knees.” He explained that the other exhibit Jeffrey Elkins tried to introduce was his wife’s deposition. Judge Baskin would not allow it because Jeffrey Elkins had not provided a written declaration establishing the evidentiary foundation to introduce it.

Justice Corrigan said, “A good trial judge says the 'depo' comes in.”

Chief Justice George said, “If one party has a lawyer and the other doesn’t, then the judge protects the rights of the unprotected, but does not become an advocate.”

At this point the hearing ended. The courtroom attendant informed the audience that the Supreme Court will issue its decision in the Elkins case in 90 days. The attorneys left the podium area and about fifty people followed them outside the courtroom.

According to its website, twice a year the Contra Costa Superior Court considers changes to its Local Rules of Court. The 2007 version of Local Rule 1 states: “These rules may be amended at any time by a majority of the Judges of the Superior Court of Contra Costa County.” One has to wonder – what were a majority of the judges thinking when they decided in 2005 to replace live testimony at trial with faux trials based on a judge’s reading a flurry of declarations. Their Local Rule 12.8 virtually eliminated all live testimony at trial.

In April 2005, Contra Costa Local Rule 12.5(b) (3) provided that in family law proceedings:

Subject to legal objection, amendment, and cross-examination, all declarations shall be considered received in evidence at the hearing. Direct examination on factual matters shall not be permitted except in unusual circumstances or for proper rebuttal. The Court may decide contested issues on the basis of the pleadings submitted by the parties without life testimony.

The family law trial court” Trial Scheduling Order” of April 2005 provided in part:

1. Unless otherwise approved in advance by the court, all direct testimony shall be in the form of declarations filed in lieu of oral direct testimony, subject to cross-examination.

2. All exhibits to be introduced at trial shall be attached to, and explained in, the declarations. Any required evidentiary foundation for admission of the proposed exhibits shall be completely set forth in the declaration(s). Documents and exhibits to be used, in good faith, only for purposes of impeachment need not be submitted with the declarations.

3. Initial declarations by each party and any witnesses shall be filed and exchanged not later than ten (10) court days prior to trial, together with any trial briefs which any party wishes to submit…. Failure to provide a declaration because a witness refused to sign it shall not excuse the filing of the unsigned declaration.

Failure to comply with these requirements will constitute good cause to exclude evidence or testimony at trial and/or to make adverse inferences or findings of fact against the non-complying party. Willful non-compliance may also be subject to imposition of monetary sanctions and will be considered by the court in assessing and awarding attorney fees and costs.

In 2005, the Local Rule allowed no oral testimony at all except to allow a witness to be cross-examined about a declaration he or she had on file.

Shockingly, despite Elkins peremptory writ of mandate or prohibition filed on 11/8/05 at the First District Court of Appeal and the fact the Supreme Court, granted review of his writ and issued an order to show case to the Contra Costa Superior Court on February 1, 2006, the majority of Contra Costa County judges voted again in 2007 to keep out as much oral testimony as possible in family law trials, by revising the 2005 rule only slightly in 2007.

The 2007 Rule 12.8 F -1(a) now provides:

“All direct testimony shall be in the form of initial declarations filed and served on the opposing party…. Absent good cause, the scope of any live direct testimony is limited to the scope of testimony contained in the declaration. Thus, whereas before no direct testimony at all was permitted, in 2007, the scope of direct testimony is limited to what is in the declaration, absent good cause. To the Contra Costa Judges, the declaration is the essence of the family law trial – it frames all that a litigant or witness may say. On the contrary, in other civil trials, for example regarding personal injury or a contract, the plaintiff or defendant is free to ask questions upon direct examination limited only by the rules of evidence, such as relevancy, hearsay and establishing a foundation. Direct examination may be wide-ranging and as it occurs the judge rules on evidentiary objections which may or may not limit its scope.”

As of 2007, the majority of Contra Costa Judges, per their local rule, only want to hear from witnesses that file declarations, despite the fact, that some witnesses will not write a declaration or are unable to do so. Local Rule 12.8 F -2(b) now provides:

The court shall disfavor the introduction of any witness for whom a declaration has not been filed. Exceptions will only be allowed to counter “surprise” testimony which could not reasonably have been anticipated and responded to in direct and responding declarations.

In regard to introducing exhibits at trial, in 2007, the majority of Contra Costa Judges have made draconian provision to introduce exhibits. Local Rule 12.8 F -5 now provides:

All exhibits to be introduced at trial shall be contained in the Exhibit binder, and fully referenced and explained in the declarations (although not attached to the declarations). Any required evidentiary foundation (including stipulations) for admission of the proposed exhibits shall be completely set forth in the declaration(s), as all rulings will be based on the declarations alone. All documents and exhibits that are to be used solely for purposes of impeachment or rebuttal must also be included in the Exhibit binder by each party.

The effects of Local Rule 12.8, both the 2005 and 2007 versions, have been felt in Contra Costa County for approximately three years. The result is tremendous bitterness and contempt for the authority of the judges and commissioners who have slapped litigants with the labyrinth of declarations required by Local Rule 12.8 and deprived them of a fair trial or any trial at all.

Did Judge Barry Baskin make the right decision in the Elkins case? He strictly enforced the local rule. He did have the option to not enforce it and to provide a fair trial. He had “discretion” to allow some flexibility in the rules to accommodate a pro per litigant’s attempt to introduce exhibits and testify. He did not do so.

On about September 1, 2007, the Supreme Court will issue its ruling. If the Local Rule in its 2005 and/or 2007 version is found unconstitutional, what will be the effect upon family law litigants? Will some run to the First District Court of Appeal and try to have decisions in their own family law trials reversed based upon the Elkins decision? Will the family law court calendar really be “jammed” as the attorney for Marilyn Elkins contended. Will Chief Justice George push for more resources for family law cases – more judges and commissioners and even some legal aid for pro per litigants? Will the Contra Costa Judges vote in the majority again to make some new type of family law rule to address or circumvent the Supreme Court’s concerns? Will due process of law and the right to a fair trial under the Constitution ever become a daily experience in Family Law Court in Contra Costa County?