Marin judicial critique spins out of control

Dufficy exits family law court
By Guy Ashley

Embattled Marin Judge Michael Dufficy is leaving most of his family law assignment, effective immediately, due to stress caused by an uproar over his handling of divorce and child custody cases.

A trip to the emergency room two weeks ago prompted Dufficy's doctor to conclude that a heart condition the judge has dealt with for the past four years was being exacerbated by the controversy that swirls around him.

"It's definitely stress-related," Dufficy said. "I attribute it to all that's been going on lately - the recall, the Winner report, the general outcry."

Dufficy, 61, has headed the family law division of the Marin courts for nearly seven years, and said he's grown accustomed to criticism he believes is inevitable for jurists handling heart-rending custody cases and bitter divorces.

But the backlash has intensified in recent months, triggered in large part by an outside investigator's report that questioned many of Dufficy's decisions in court and asserted that he acted unethically by hearing cases involving lawyers who employed his wife, a legal secretary.

Dufficy says he always has acted with the best interests of children and families in mind. He also said he received two verbal opinions from the state Judicial Council indicating that there were no conflicts involving his wife's employment.

"The cases cited in the report (by New York investigator Karen Winner) were very clear-cut in my mind," he said. "Some weren't even close. I'm comfortable with my decisions."

The Winner report appears to have triggered a wider condemnation of the local courts and a petition drive to recall Dufficy, two other judges and District Attorney Paula Kamena. Recall petitions against the four court officials all cite decisions made in child custody cases.

Dufficy said the flood of criticism has taken its toll on his health to the point that it is time to get out of the family court firing line. The frustrations are particularly high, he said, because he is limited in what he can say about specific cases.

Court officials said earlier that Dufficy would leave the family law court at the end of the year as part of a new rotation system involving all of Marin's judges. That rotation will now take place in September as the court tries to accommodate Dufficy's need to move off the trial and law and motion calendars in the family courts.

Those cases will now be assigned out of Superior Court Judge Lynn Duryee's court, according to Court Administrator John Montgomery. For the time being, Dufficy will continue to handle probate cases, family law settlement conferences and the juvenile drug court. He also will assume some of Duryee's civil caseload, according to Montgomery.

Jean Taylor of San Rafael, one of about a dozen citizens who commissioned Winner's report, said she wishes Dufficy well.

"I don't believe in destroying reputations and careers, and I certainly don't wish bad health on anyone," she said. "All I want to see is some solutions to some real heart-breaking problems that are occurring in our court system."

By Guy Ashley ©

A few weeks ago, Jean Taylor of San Rafael wondered woefully whether a report recommending an overhaul of Marin's family court system was headed for the dusty bookshelf of history.

Now she's concerned the report by New York investigator Karen Winner - which Taylor and about a dozen other citizens commissioned by contributing up to $10,000 from their own pockets - has spawned a monster.

What was intended as a well-considered look at perceived family court injustices - primarily child custody matters - has exploded into a recall movement that has enveloped Marin's chief prosecutor and three judges.

Taylor isn't the only one worried that the effort to raise awareness about local family court decisions is being obscured by a runaway movement led by a Sausalito minister and perennial political candidate and a mother from Novato who sued every judge in Sonoma County before bringing her wrath down on jurists in Marin.

"It's like a shooting gallery," said Martin Silverman of San Rafael, a former county grand juror who helped finance Winner's report. "They're going after everybody."

Taylor, Silverman and others who paid for the report and its call for family court reforms have watched with wonder, and some trepidation, as protesters held noisy Wednesday afternoon demonstrations and took out petitions seeking to recall District Attorney Paula Kamena and Superior Court judges Michael Dufficy, Lynn Duryee and Terrence Boren.

"Once Karen Winner's report was aired, all these people who harbored all these frustrations for so long thought, 'the cat's out of the bag,' " said Taylor, who has lived in San Rafael for 40 years. "Now they're going for blood."

Taylor and Silverman said they don't support the recall efforts and are frustrated by a public perception that they're behind the signature drive.

"We want to divorce ourselves from those people," Taylor said.

At the center of the recall drive is Peter Romanowsky, a father of three who says he "walked away" from a child custody dispute with his ex-wife and hasn't seen his children in more than three years.

Romanowsky is a marine salvage specialist who has made unsuccessful bids for election to the state Senate and the boards of the Sausalito School District and Marin Healthcare District. He leads regular protests outside the Marin Civic Center that he says are getting the word out that things need fixing in the county courts.

"One police officer told me that I was going to lose all my credibility, going after so many judges," he wrote in one of the voluminous e-mails he has been sending recall watchers. "Some people think we have bitten off more than we can chew, but it's just not so.

"We are storming the Bastille."

He is joined at the vanguard of the recall movement by Carol Mardeusz, a mother of two from Novato who has been embroiled in a five-year battle with a former boyfriend over custody of their daughter, now 10.

In 1998, she was convicted of misdemeanor contempt of court in Sonoma County for violating terms of a court order that granted custody of the girl to the ex-boyfriend. In that case, Mardeusz sued the entire Sonoma County bench seeking to have it removed from hearing the matter.

She now is charged in Marin with perjury and attempted child stealing in connection with an attempt last fall to pick up the girl from her school in Petaluma.

Marin prosecutors say Mardeusz gave false information to the local courts to obtain a custody order, which she served on officials at the child's school.

Mardeusz is suing the Marin County bench in an effort to have it removed from hearing the case. In court papers, she accuses the prosecutor in the case, Kelly Vieira of the Marin District Attorney's Office, of "acting in symbiotic collusion and chain conspiracy" with Sonoma County authorities and the ex-boy-friend, whom she has accused of abusing their daughter despite at least one Novato police investigation that found no proof to support her accusation.

In both disqualification efforts, Mardeusz wielded an identical accusation: that local officials are treating her unfairly by failing to recognize that she suffers from Post Traumatic Stress Disorder due to what she referred to as "Legal Abuse Syndrome."

The only fair way to accommodate her problem, Mardeusz says, would be for the courts to allow her 48 hours to respond to any action taken in her court case, something the courts hearing her cases have refused to do.

Recall organizers face the formidable task of convincing about 13,000 registered Marin voters to sign their petitions calling for recall elections. A spokeswoman with the Marin Registrar of Voters said the petitions have yet to be certified because of wording that needs to be added or omitted from draft petitions submitted by recall leaders.

One political consultant who steered two successful recall campaigns in Marin said the courthouse recall movement stands a chance - if the signature gatherers are willing to put ample time and money into their efforts.

Mark O'Hara, who guided successful recalls involving the Marin Healthcare District and Sausalito school board, said he believes the courthouse critics include some well-financed individuals, at least one of whom already spent several hundred thousand dollars in fighting a child custody battle.

"If someone like that is willing to spend that kind of money on a recall, a lot of damage could be done," he said.

Although he is not involved in the recall, O'Hara said an effective campaign would direct its money toward gathering signatures and running a "thorough and persistent media campaign" to keep controversy in the minds of voters.

O'Hara said the recall campaign's greatest hope of success appeared to be with Dufficy, an embattled jurist who was a primary target in Winner's report and about whom rumblings of dissension have been heard at the courthouse for at least three years.

In 1997, the county Civil Grand Jury was asked to investigate rulings by Dufficy and Court Commissioner Sylvia Shapiro in family law cases.

Silverman, then chairman of the grand jury's law and justice committee, said the panel voted 19-0 to launch an investigation, only to be told by County Counsel Patrick Faulkner that the panel did not have jurisdiction to investigate.

Silverman said he remained concerned about Marin's family court after he left the grand jury, and later joined forces with other citizens who found the court's operations scandalous. The group determined that only wider public knowledge would spur change and began discussing how to shed light on happenings in family court.

Ironically, Silverman said, the group rejected the notion of a recall because it believed gathering the required signatures would be next to impossible if the public was not adequately informed. Instead, the group went to Winner, author of the 1996 book, "Divorced from Justice," in hopes she could help bring more public attention to the family court controversy.

Silverman has since run into his own problems with Kamena's office, which earlier this month revealed it was investigating whether he breached his oath to keep grand jury matters confidential by revealing publicly that the complaints that prompted the report originated with the grand jury.

Winner's report says Dufficy lined the pockets of friends by appointing them to child-custody cases as lawyers and psychological experts. He denies the charge, noting that court-appointed attorneys and psychological experts often are paid at rates so low that many in these professions don't want the work.

Winner says she spent three months putting together the report. She cited nine cases in her report that had been presented to her at the outset by people who approached her about doing the investigation and felt they had been wronged by the court.

The report also accuses Dufficy of keeping "secret financial ties" to local law firms, primarily by hearing cases involving Marin attorneys from offices where his wife worked as a legal secretary.

Dufficy said he obtained a verbal opinion from the state Judicial Council that allowed him to hear such cases and that he has informed litigants of his wife's status anyway.

Dufficy said he is being wrongly villified. In an interview, he said his biggest transgression might have been his decision to stay at the helm of the county's family law bench for seven years.

"Unlike the other courts in this building, there is no jury. The judge makes all the decisions in family court," he said. "Over seven years, you build up a critical mass of people who are angry at you because they disagree with your rulings."

Dufficy, who said he now believes judges should serve in family court no more than two or three years, has announced his intention to leave the family law bench immediately. The stress caused by the flood of criticism, he said, has led to health problems he needs to correct.

Marin's legal establishment appears to be standing squarely behind Dufficy and the others.

"It's astounding they're taking this route," said Royda Crosland, a Mill Valley attorney who is president of the Marin County Bar Association. "If these people want to voice criticism in a constructive way, in a way that will be heard by the judges, they have taken the wrong approach. They've put everybody on the defensive and just closed the door to the possibility of a constructive dialogue."

Crosland said the local Bar Association has not taken a formal position on the recall drive, but she predicted the group would oppose the recall when it votes on a position at its monthly meeting in June.

Petitions calling for Kamena and Boren to be recalled cite one case: the ongoing prosecution of Mardeusz, 44. Though the case has been winding its way through the local courts since last fall, it wasn't until March that recall leaders cited it as justification for a criminal justice overhaul in Marin.

Earlier this year, Mardeusz attempted to have Boren disqualified from hearing her case. Her bid was turned back, however, when San Francisco Superior Court Judge Alfred Chiantelli ruled allegations made by Mar-deusz did not warrant the judge's disqualification.

Eventually, Boren shipped the case off to another judge, anyway, saying a three-month trial in his department precluded him from presiding over the matter. In recent weeks, Judge Verna Adams has been handling the case.

In an interview, Mardeusz also accused Sonoma County law enforcement officials of disregarding evidence she had about the 1993 kidnapping and murder of Polly Klaas by Richard Allen Davis.

Mardeusz says that at the time of the kidnapping, she lived with her two daughters two blocks away from the Klaas home in Petaluma.

One of her daughters looked like Polly, Mardeusz said, and had reported a strange man following her home one day that summer. A week before the kidnapping, she said, she pulled up to her house and saw a man who looked exactly like Davis standing in her driveway. The man scurried away, according to Mardeusz.

Pressed on the matter, Mardeusz said she believes Davis intended to kidnap her daughter on the night Polly was snatched from her home.

"That night I had a bunch of kids sleeping at my house and Polly had a pajama party at her house, too," Mardeusz said. She said Davis saw Polly and her two friends at a grocery store on Petaluma Boulevard and followed them back to the Klaas home, thinking it was actually the Mardeusz residence.

"That's why he was asking the weird questions," when he burst into Polly's room, she said.

Petaluma police said that before abducting Polly, Davis asked the girls about who was living at the home.

The recall campaign against Kamena also cites her decision not to file charges against two Marin supervisors, John Kress and Annette Rose, who admitted earlier this year that they used their county-issued credit cards to make personal purchases.

Kamena said she could not prove a crime because the county policy on credit card use was blurry.

"The long-established business practice of the county auditor's office permitting repayment of personal credit card charges by county supervisors negated the required legal element of 'unauthorized' use of the cards," Kamena wrote in her response to the recall on May 16. "Thus, no prosecutable crime existed."

The petition bearing Duryee's name cites one case in which she has ruled, a heated dispute involving Deborah Planet Irish of Larkspur and her ex-husband, San Rafael auto dealer John Irish, over the custody of their 5-year-old son.

Silverman and other family court critics have rallied behind Planet Irish, whom they say is a devoted mother who has been wronged by being granted only limited custody of the boy.

Planet Irish has repeatedly sought to have Duryee removed from the case, but a Napa County judge appointed to hear the matter refused to disqualify the judge.

In a ruling on March 31, Judge Philip Champlin ruled "there is no credible showing of bias or prejudice on the part of Judge Lynn Duryee" in the custody matter.

Tension over the case remains high, however.

Extra security was on hand when the matter returned to Duryee's courtroom on May 16 for a hearing on John Irish's motion to further limit his ex-wife's visitation rights. The hearing opened with Duryee announcing that she had been informed that "the recall group has issued a death threat to the judges who are subject of the recall."

Outside the courtroom, deputies questioned a woman involved in the recall about the alleged threat, but there were no arrests.

Duryee later denied John Irish's motion, but she warned the dozen or so supporters of Planet Irish who attended the hearing not to feel she was swayed by their presence.

"This is not a popularity contest," she said. "The job of the court is to apply the law, not to please people, not to be popular and not to yield to the group that is putting the most pressure on the judge."

Contact Guy Ashley via e-mail at