Judge Barry Baskin caught in a lie.  Chief Justice George terms Baskin's ruling "mechanical".  
by Kathryn Joanne Dixon © 8/8/07

In an August 7, 2007 decision  authored by Chief Justice Ronald M. George and joined by all the California Supreme Court Justices, except by Justice Kathryn Werdergar, in part, the Court delivered a death blow to the family law courts of the Contra Costa Superior Court.  The Family Law judges of Contra Costa County must not only chuck their old Local Rule 12.5(b)(3), which was adopted in 2005 regarding family law trials immediately, they must also eliminate their new Local Rule which modified the old one just slightly when amended on January 1, 2007.  Those Local Rules provided and provide that trial litigants could present only written declarations.  Only in “unusual circumstances” could witnesses be cross-examined, and only upon request could declarants be cross-examined.  The admissibility of all exhibits were and are required to be established in pretrial declarations

Jeffrey Elkins, a self-employed consultant, represented himself in a dissolution trial before Contra Costa County Superior Court Judge Barry Baskin.  His ex-wife Marilyn Elkins had sued him for divorce.  Substantial property issues were at stake.

At trial, Contra Costa Superior Court Judge Barry Baskin applied the Contra Costa Local Court Rule and Trial Scheduling Order that had been enacted by a majority vote of the local bench.  He excluded all but 2 of Elkin’s 36 exhibits because Elkins did not provide a declaration to establish the foundation for their admissibility prior to trial. He would not allow Jeffrey Elkins to testify. Jeffrey Elkins, hearing this, threw up his hands in despair.  Then Baskin applied the rules as strictly as possibly – in effect he defaulted Jeffrey Elkin of his property rights in his dissolution case because he did not, could not or was simply unable follow Contra Costa County Local Rules.  Elkins filed his writ.  The First District Court of Appeal denied it, but the Supreme Court opened the door and heard it.

Money is no object and this was proven when foremost appellate attorney Jon B. Eisenberg was hired to defend Contra Costa County's local rules.  He presented a defense of the indefensible – a defense of unfettered and untested hearsay declarations. 

The Supreme Court did not reach the heights of the constitutional due process issues presented by Elkin’s counsel Garrett C. Daily, but it did  hold that the local rule that provided for trial by declarations, rather then live testimony in court, was a violation of the state Evidence Code and Code of civil procedure, specifically the hearsay rule.  Therefore Judge Baskin is reversed.  Elkins case must go to trial again.

When the Supreme Court of California threw out Contra Costa County's Local Rules, it opined that all declarations are hearsay and are inadmissible at trial unless there is an exception to the hearsay rule or they are stipulated into evidence. (Note: the Supreme Court acknowledged that for purposes of family court law and motion proceedings, declarations are still admissible.)  The Court stated that the opportunity to call witnesses and cross-examine them is essential to a litigants’ having his or her day in court.  Credibility of witnesses is important and must be tested by cross-examination in court. Mere written declarations do not allow for credibility to be tested. 

The countless family law litigants and the manipulated children must be wondering what the Contra Costa Superior Court judges were thinking?  Hundred, perhaps thousands of families have been subjected to the Local Laws that, in many ways, smacked at outright fascism.  Because the Supreme Court's ruling did not directly address the issue of constitutional due process it is unclear how many litigants and their children have been denied their due process in the Family Law Courts of Contra Costa County. 

The Supreme Court was generous in finding some degree of sympathy for the Contra Costa Court whom it found wanted to promote “efficiency”.  However, no statistics were presented in the court filings to account for how many hours each family court judge spent at various tasks such as reading paperwork for pending cases, review of motions, preparing and signing orders, and interaction with litigants, attorneys and court personnel.  The unanswered question is how many hours a Family Law Judge spends on the job and how many hours they spend socializing on the golf course, at art shows, and or at Family Law Associations meetings.

As for “efficiency”, Mussolini boasted of efficiently making the trains Italy run on time as his campaign platform.  And what  is “efficiency” to a couple caught up in the grinding machinery of dissolution – one, if not the only, matter in their lifetimes which is of critical importance – child custody and visitation, support, division of property.

One Judge who has consistently focused on heavy work loads and limited time for judges is Judge Barry Baskin, the judge on the Elkins case.  What did Chief Justice George say about Judge Baskin?  First the Chief Justice recounted the facts.

Judge Baskin had “tentatively sustained” Marilyn Elkin’s objections to 34 of 36 of Jeffrey Elkin’s exhibits, because he had no declaration to back up 34 of them, subject to “further argument,” as the Judge said, “after the morning break.   Chief Justice George stated (See page 7 of the opinion) that, “No such break ensued.”

In plain English, Judge Baskin lulled proper litigant Elkins into a false sense of security implying that he would probably allow additional arguments by Elkins later on.  In truth Judge Baskin lied to Elkins because Baskin alone controlled the conduct in his courtroom.  Judge Baskin did not allow the break he had alluded to from the bench.  Instead Marilyn Elkin’s declaration and her exhibits were entered into evidence and she rested.  Jeffrey Elkins  was promptly stripped of his right to testify and all of his 34 exhibits were excluded.  His right to be heard were eliminated by a judge who lied to him while maintaining the illusion of impartiality. 

Chief Justice George wrote:

Without providing the anticipated “morning break”, the court invited closing argument. Although observing that the trial was proceeding “quasi by default so to speak”, the court stated that both parties still should address the subjects of the “furniture lists” and the contents of the safety deposit box.”

The Chief Justice noted both the matter of the furniture and safety deposit box contents had been subject to stipulation prior to trial.  

Once again judge Barry Baskin created the illusion of a fair and just hearing pretending to consider issues that the judge fully knew had already been agreed to by both parties. So in October 2005, Judge Baskin divided most of the community property in accordance with the declarations submitted by Marilyn Elkins.  Then Judge Barry Baskin defaulted Jeffrey Elkins out of all but one-half interest in his family home, a matter previously resolved between the parties.

Chief Justice George stated:

In the present case, the trial court applied the sanction in a mechanical fashion without considering alternative measures or a lesser sanction resulting in the exclusion of all but two of petitioner's 36 exhibits.  Had the court permitted petitioner to testify, he could have provided some foundation for his exhibits.  In applying the local rule and order mechanically to exclude nearly all of petitioner’s evidence – and by proceeding in the words of the trial court by “quasi-default” – the trial court improperly impaired petitioner’s ability to present his case, thereby prejudicing him and requiring reversal of the judgment.

The Supreme Court Justice threw a couple of profound barbs at the Contra Costa County Judges:  

…. we do not view respondent’s curtailment of the rights of family court litigants as justified by the goal of efficiency. (Page 32)

“We are most disturbed by the possible effect the rule and order have had in diminishing litigants' respect for and trust in the legal system”  (Page 34)

“In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. (Page 35)

The Chief Justice also proposes a task force be established by the Judicial Council to seek to streamline family law court systems, yet “ensure access to justice for litigants”.  This statement could imply that the Chief Justice places little faith in the ability of the Contra Costa County Superior Court to properly police itself. 

What does the future hold for the Contra Costa family law courts and Judge Barry Baskin and most of all, for litigants subjected to this court in light of the Supreme Court’s decision?

It can be anticipated that the Contra Costa County bench will at least revoke the local rules cited in the Elkins ruling  sometime within the next 30 days.  That would appear to be a timely act respecting the Supreme Court decision.  However, under Presiding Judge Terrence Brunniers' loose reins and the secrecy imposed by Court Administrator Ken Torre, the Contra Costa County Superior Courts find themselves in crises. 

The Family Law Court is that one area of the any court system where compassion, fairness, and transparent judgment is essential.  It is acknowledged by mental health experts that divorce is a life altering experience especially when custody disputes over children is involved and the financial stability of the parents is an issue.  Contra Costa County superior courts have chosen to implement restrictive rules which impose expensive, unfair burdens on family law litigants and their attorneys.  Then to compound the arrogance and error of these regulations the court places commissioners and judges on the family law bench whose sole concern seems to be their own work schedule.  

Judge Barry Baskin is typical of the type of individual overseeing family law disputes in Contra Costa County.  Judge Baskin is a product of the South African legal system before moving into California's civil litigation arena.  A man who went through a bitter divorce himself, one would assume he would understand the trauma and emotional devastation such an experience leaves in its wake.  But apparently that is not the case.  In the courtroom Judge Baskin is always in absolute control to the point that he often does not let litigants before him time to express their thoughts and present their evidence.  He is brisk, abrupt and about efficiently moving a case right along regardless of the effect of the parents or the children involved.  Chief justice Ronald George said it best when he described Judge Baskin's ruling as "mechanical".  

The Supreme Court of the State of California has found that the Contra Costa County Judicial Bench invented its own rules and created its own fiefdom and, in so doing, disregarded the laws of the state of California.  Will the Contra Costa bench finally recognize that it is not a kingdom that can dictate to its citizenry regardless of the constitution or will this court continue to rule without a conscience ?   

Kathryn Joanne Dixon © 8/8/07


The ruling is Elkins v. Superior Court (Elkins), 07 C.D.O.S. 9285.

Supreme Court decision PDF

Jeffrey Elkins was represented by Garrett C. Dailey, an Oakland sole practitioner, who argued his case.

The Contra Costa Superior Court was represented by Jon B. Eisenberg of Eisenberg & Hancock, Oakland, CA who argued his case and by David S. Ettinger  Horvitz & Levy.

Marilyn Elkins was represented by Leslie Paige Wickland of Fancher & Wickland, San Francisco who argued her case and by Daniel S. Harkins of Harkins & Sargent.

High Court: Fair Trial Trumps Efficiency

by Mike McKee © Cal Law, 08-07-2007 Page printed from:

While sympathetic with the heavy caseloads borne by family courts statewide, the California Supreme Court on Monday nonetheless voided a controversial Contra Costa County rule aimed at streamlining court proceedings.

"That a procedure is efficient and moves cases through the system is admirable," Chief Justice Ronald George wrote for a unanimous panel, "but even more important is for the courts to provide fair and accessible justice."

George recommended in a footnote that the state's Judicial Council establish a task force to investigate how to help family courts run more efficiently while maintaining access to justice for their litigants, most of whom are pro per.

At issue in Monday's opinion was the Contra Costa County Superior Court's Local Rule 12.5(b)(3), which was adopted in 2005 to reduce delay and minimize conflict between opposing parties in family court. It authorizes judges to reject documents not made available five calendar days before a hearing, and requires all exhibits to be enclosed in binders with explanatory declarations attached.

Most troubling to critics, though, was the requirement that limited testimony to written declarations, while allowing the trial judge discretion to take direct oral testimony only in unusual cases.

Jeffrey Elkins, representing himself, challenged the rule in 2005 after Superior Court Judge Barry Baskin invoked it to reject all but two of the 36 exhibits Elkins wanted to present during a divorce proceeding with his wife Marilyn. He argued that by severely limiting his documentation and simultaneously not letting him testify, the judge gave him no way to defend his position in a dispute over property division.

Elkins, a self-employed consultant who used to be the chief executive officer of Danville's CalTech International Telecom Corp., sought review with the First District Court of Appeal. He argued the Contra Costa rule established a system of "trial by declaration" that violated his constitutional due process rights, and placed an "unreasonable burden" on litigants. His writ petition was summarily denied.

In Monday's ruling, the high court sidestepped Elkins' due process arguments. Instead, the justices found that Contra Costa's rule violates state statutes that regard written declarations as hearsay that can't be admitted as evidence in contested trials. Testimony is crucial in divorce cases, the court held, because it gives the judge the chance to determine credibility.

"Ordinarily, parties have the right to testify in their own behalf," George wrote, "and a party's opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court."

Contra Costa amended the rule earlier this year to permit testimony in addition to, but not in lieu of, declarations. But George said that still fell afoul of state statutes.

The chief justice also noted that several amici curiae — including the Northern and Southern California chapters of the American Academy of Matrimonial Lawyers — had sided with Jeffrey Elkins. In addition, he pointed out, a survey of family law practitioners in Contra Costa found most "decidedly critical" of the local rule.

George took a shot at the trial court judge too, accusing him of "prejudicing" Elkins by applying the rule "in a mechanical fashion" without considering "alternative measures."

In a concurring opinion, Justice Kathryn Mickle Werdegar came to Baskin's defense by noting he was only following the rules of his court. "In my view," she wrote, "the trial court's rule and order, rather than the particular actions of the court in this case, are to blame for the exclusion of [Elkins'] evidence."

Oakland solo practitioner Garrett Dailey, who represented Jeffrey Elkins on appeal, said the ruling upholds the principle that "the rules of evidence, including the right to offer direct testimony, must be preserved."

He said the ruling sends the case back for further proceedings on property division.

Oakland lawyer Jon Eisenberg, a partner at Eisenberg and Hancock who represented the Contra Costa court, called the ruling "a meticulous opinion on the narrow hearsay issue and the broader policy issues."

"It sends the superior court back to the drawing board with clear directions," he added.

The ruling is Elkins v. Superior Court (Elkins), 07 C.D.O.S. 9285.

Justices Reject Local Rule Aimed at Expediting Family Law Trials

by Kenneth Ofgang, Staff Writer © 8/7/07, Metropolitan News-Enterprise

Contra Costa Superior Court rules aimed at expediting family law trials are contrary to state law and unenforceable, the California Supreme Court ruled yesterday.

“[W]e reach this conclusion because, pursuant to state law, marital dissolution trials proceed under the same general rules of procedure that govern other civil trials,” Chief Justice Ronald M. George wrote for the court.

The rules and standard pretrial order struck down by the court—which have been recently superseded in part by new rules—made declarations admissible at trial in place of direct examination, which was not permitted in the absence of “unusual circumstances,” and required the parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial.

The rules were challenged by Jeffrey Elkins, a self-represented litigant in a divorce proceeding in which his wife had counsel, after nearly all of his exhibits were excluded as sanctions for failing to comply with the court’s requirements. The state Supreme Court agreed to hear the case after the Court of Appeal summarily denied his writ petition.

Sympathy for Court

While expressing sympathy for the court’s efforts to deal with the high volume of family law cases, George said the appellate courts will not hesitate to strike down local rules where “a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.”

The Contra Costa procedures, the chief justice said, are contrary to the Evidence Code provisions governing hearsay and setting forth procedures to be followed prior to trial.

George distinguished cases allowing procedures similar to those challenged with regard to family law motions. Where the resolution of contested issues of fact will result in a judgment, the chief justice emphasized, the rules of family law are no different from those applicable to other civil matters.

“Courts must earn the public trust,” he wrote. “...We fear that respondent’s rule and order had the opposite effect despite the court’s best intentions.”

In a footnote, George suggested that the Judicial Council establish a task force to study how to balance the need for efficiency in family law courts with the need for fairness to litigants.

Concurring Opinion

The opinion was signed by all members of the court except Justice Kathryn M. Werdegar, who wrote in a concurring opinion that the majority, while reaching the correct result, was unnecessarily wandering into issues of policy best addressed by the Judicial Council or the Legislature.

Amicus briefs criticizing the rules were submitted by a number of family law and local bar groups, including the Los Angeles County Bar Association and its family law section, as well as retired Court of Appeal Justices Donald King and Sheila Prell Sonenshine and retired Los Angeles Superior Court Judge Richard Denner.

The case is Elkins v. Superior Court (Elkins), 07 S.O.S. 4910.  

Copyright 2007, Metropolitan News Company


Click.  (Metropolitan) Court of Appeals Justice Laurie Zelon to lead Elkins Family Law Task Force.



by Kathryn Joanne Dixon