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INTERBRANCH COMMISSION
ON J UVENILE J USTICE

MAY 2010

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IV. recommendatIons
e Interbranch Commission on Juvenile Justice has received many recommendations from a variety of witnesses
representing a range of interests and concerns. e commission has carefully considered all materials and testimony. Some
suggestions presented worthwhile topics for further consideration in an environment oering more extensive resources.
e commission is mindful, however, of the realities of Pennsylvania's dicult scal situation and the imperative of
focusing reform on practical recommendations. As a result, the commission has not adopted some recommendations that
have received considerable support.
Space limitations do not permit an explanation of why some suggestions have not been adopted. However, the commission
feels compelled to explain why it has not chosen to adopt two suggestions that have been widely endorsed.
e rst is a suggestion that juvenile courts be made presumptively open to the public.
e Juvenile Act currently provides that the public shall not be excluded from hearings involving children 14 years of age
or older who have been charged with a felony, and children 12 years of age or older charged with designated serious
oenses such as murder, robbery or certain sexual oenses. In addition, under dened circumstances, court records and
les are also available for public review.
ose in favor of opening all proceedings to the public argue that public scrutiny will serve as a check on abuses of judicial
power. e commission agrees that there must be checks on abuse of judicial power. e commission believes, however,
that on balance any abuse can be more appropriately addressed by enhancements to appellate review and to the system of
judicial discipline rather than by exposing children to the possibility that the facts surrounding childhood misconduct
could be perpetually maintained in news clippings, and now even on the internet. e notion that the hearings can be
made accessible to the public, but that information presented in those hearings can be kept private and not subject to
distribution, the commission determines to be impractical.
e commission acknowledges that some juvenile court judges as an aid to enhancing public understanding of the juvenile
courts, and with the consent of the parties, have opened their courtrooms to the press and public. e commission does
not discourage this practice in appropriate cases. However, it concludes that the Juvenile Act as currently written provides
the correct balance of public access and child protection.
Second, the commission did not recommend the creation of an oce of Ombudsman.
Although the oce of Ombudsman can be congured in many ways, as dened in one suggestion submitted to the
commission it was dened as follows: an independent watchdog and public advocate who investigates grievances
regarding governmental abuses of power, illegal and inappropriate behavior by those in positions of authority, and
violations of individuals rights.
If the recommendations the commission has suggested do not prove to be adequate to address the problems in the juvenile
justice system that the commission has identied, it is possible that creation of such an oce could be considered in the
future. However, it is the judgment of the commission that the statewide juvenile justice system as currently constituted can
be improved without additional bureaucratic structures, and that the resources that would be needed to create and
maintain the oce of Ombudsman could be put to more productive uses.
Here then, in sum, are the full recommendations of the Interbranch Commission on Juvenile Justice.
__________________________________________________________________

a. recommendatIons regardIng crIme VIctIms

e Juvenile Act and the Crime Victims Act provide the legislative foundation for Pennsylvanias balanced and restorative
juvenile justice system.
In 1995, the Juvenile Act was amended to require that upon nding a child delinquent, the court must enter an order of
disposition consistent with the protection of the public interest and best suited to the childs treatment, supervision,
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rehabilitation and welfare. Moreover, the Juvenile Act requires that in fashioning a disposition, a juvenile court judge must
give balanced attention to protecting the community, imposing accountability for the oenses committed, and assisting
the juvenile to develop the competencies that will be needed to become a responsible and productive member of
the community.
Subsequently, the Pennsylvania Commission on Crime and Delinquencys Juvenile Justice and Delinquency Prevention
Committee developed a juvenile justice system mission statement that has guided the Pennsylvania juvenile justice system
for over a decade. at statement provides that the juvenile justice system should be guided by the values of community
protection, victim restoration and youth redemption.
Community Protection refers to the right of all citizens to be and feel safe from crime.Victim Restoration emphasizes
that a juvenile who commits a crime harms the victim of the crime and the community, and thereby incurs an obligation
to repair that harm to the greatest extent possible. Youth Redemption embodies the belief that juvenile oenders have
strengths, are capable of change, can earn redemption, and can become responsible and productive members of
their communities.
e Interbranch Commission on Juvenile Justice concludes that Pennsylvania must give additional attention to victim
restoration. Signicant attention has been aorded the aspects of balanced and restorative justice relating to community
protection and youth redemption. However, funding has been substantially reduced for the Victims of Juvenile Oender
(VOJO) program and there is no statewide advocate for victims of juvenile crime. Moreover, some of the original victims
of the juvenile crime in Luzerne County have been denied the right to receive restitution because the juvenile adjudications
have been vacated.
erefore, the commission recommends:
1. e creation of a statewide oce of Juvenile Justice Victim Advocate. is position would be aliated with the
Oce of the Victim Advocate. e goals of victim restoration when juvenile crime is involved present complex
dynamics as society attempts to balance the unique developmental needs of children against the real harm suered
by victims. is requires a specialized expertise. e Juvenile Justice Victim Advocate, therefore, would work
collaboratively with the Pennsylvania Commission on Crime and Delinquency, statewide victim services agencies
and juvenile justice stakeholders to develop appropriate policies, guidelines, protocols, and data collection and
analysis pertaining to victims of juvenile crime.
2. e restoration of funding for the Victims of Juvenile Oenders (VOJO) program to 2005 levels. Since 2005,
funding for VOJO has dropped to $1,221,000 from $3,455,000 and further cuts are anticipated. ese cuts have
forced counties to reduce the number of advocates serving victims of juvenile crime and enhanced the diculties
associated with providing services to juvenile crime victims.
3. e creation of a Luzerne County Victims of Juvenile Crime Restitution Fund. Because the Supreme Court vacated
juvenile adjudications in Luzerne County, many victims of juvenile crime have been deprived of the benet of
restitution awards to which they would otherwise have been entitled. e commission recommends that a fund be
created and made available to Luzerne County residents who have been denied restitution payments because their
awards have been vacated as a consequence of the Supreme Courts decision. Because the amount of some restitution
awards has been questioned, the commission is unable to determine the amount of money that should be allocated
to the fund once it is created. However, the commission members believe the amount to be less than $500,000. e
commission further recommends that the Supreme Court appoint a Master to develop a method to properly
determine the amount of restitution owed to any particular victim and to distribute the funds allocated accordingly.

b. recommendatIons regardIng JudIcIal ethIcs

e 1973 Pennsylvania Code of Judicial Conduct became a focal point of the testimony before the Interbranch
Commission on Juvenile Justice. It was glaringly apparent not only from the testimony, but also from the recorded
background information, that the aspirational goals and mandatory prohibitions contained in the code were not a
deterrent to the conduct of Judge Ciavarella in his supervision over the juvenile court. e pervasive treading upon the
constitutional rights of accused juveniles, coupled with the apparent conict of interest due to the relationship with the
dispositional placement resources, which former Judge Ciavarella has acknowledged in judicial forums, cries out that the
goals and prohibitions of the code did not prevent misconduct in this unique instance in Luzerne County.
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e commission learned that the Juvenile Court Judges' Commission (JCJC), on behalf of its judicial members, sought
guidance from the Ethics Committee of the State Conference of Trial Judges, concerning issues such as gis, oers of
transportation and lodging, board activity, and other instances which had been commonplace marketing tools by private
providers to the juvenile courts. Additional guidance was also sought regarding supervision of juvenile court sta. e
Ethics Committee responded to the JCJC, stating that due to the overall complexity of the issues and the potential impact
on other specialized courts such as drug courts, mental health courts, Orphans Courts, and proceedings involving the
elderly, a comprehensive input from a broader cross section of the judiciary was required. e Ethics Committee concluded
that there needs to be a collaborative opportunity to further dene the common interests and issues shared by the
respective specialty courts and to obtain guidance from the Pennsylvania Supreme Court in order to properly articulate
meaningful guidelines and directives.
e commission heard testimony from Robert Kuhlman, Ethics Counsel to the American Bar Association. Kuhlman
advised the commission that the Revised 2007 Model Code of Judicial Conduct provides in pertinent part more expansive
ethical guidance to judges whose roles include restorative justice principles and engagement with the community.
Kuhlman also recommended that the Supreme Court revisit the use of the aspirational language of should found within
the code to a more denitive shall when addressing concerns of known or suspected judicial misconduct.
Given the concerns expressed by the Ethics Committee of the State Trial Conference and the testimony of Kuhlman, the
commission recommends:
1. at the Supreme Court re-examine the current Code of Judicial Conduct in order to address the ethical provisions
which impact condence in our courts such as ex parte communications, impartiality, and community engagement.
2. at the Supreme Court examine whether or not the code should provide clearer language for judges to recognize
when they are obligated to report either misconduct or their belief of misconduct.

c. recommendatIons regardIng JudIcIal dIscIPlIne

e Interbranch Commission on Juvenile Justice recognizes the inherent diculties associated with any proposed changes
to the judicial disciplinary system. It cannot be forgotten that the Judicial Conduct Board is a relatively new creation with
its own genesis arising out of a prior scandal involving Pennsylvania's judicial disciplinary system. e 1988 Report of the
Governor's Judicial Reform Commission (also known as the "Beck Commission") carefully studied and considered the
complex issues surrounding judicial discipline and compiled a detailed report of its ndings and conclusions. As a result of
the Beck Commission's work and study, the Pennsylvania Constitution was amended to create the Judicial Conduct Board
in 1993.
e Interbranch Commission on Juvenile Justice was not created to overhaul the judicial discipline system, though one of
the commission's statutory duties required that this system be considered. is commission spent a signicant amount of
time reviewing the specic failings of the Judicial Conduct Board in relation to its actions towards then Judges Conahan
and Ciavarella. Despite the amount of time spent on the issue, that eort cannot compare to the careful analysis and
targeted consideration provided by the Beck Commission report to the issue of judicial discipline. It was clear from
Judge Beck's testimony that the judicial discipline system as implemented was not comporting entirely with the
recommendations of the Beck Commission. ere can be no better starting point for consideration of the judicial
discipline system than the Beck Commission report and Judge Beck herself in assessing the proper steps for continued
improvement.
Given the constitutional nature of the Judicial Conduct Board, any substantive adjustments of the existing system requires
amendment of the constitution, a process which obviously cannot be immediately implemented.
On the other hand, the Judicial Conduct Board has to its credit attempted to address its own failures by the creation of new
Internal Operating Procedures through which, as one witness stated, the Judicial Conduct Board was taking back its
constitutional authority. e commission commends the Judicial Conduct Board for its proactive eorts, and certainly
encourages the Judicial Conduct Board to continue its own critical review with an eye toward improving judicial discipline
in Pennsylvania. However, the commission found the new Internal Operating Procedures decient and believes that in
their current form they will not serve to correct all of the internal deciencies that contributed to the board's failure to
address the judicial discipline issues that cried out for attention in Luzerne County.
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e ability of the commission to review the Judicial Conduct Board's conduct was substantially hindered by the provisions
relating to condentiality contained within the constitution itself. Aer months of ghting, arguing and cajoling, the
Judicial Conduct Board eventually provided the commission, under seal, a substantial amount of material that was critical
to the assessment process. e commission commends the Judicial Conduct Board for its nal cooperation, but the
material provided also raised more questions about the board's operations and reinforced the commission's opinion that
changes are necessary.
e commission has developed two sets of recommendations, one set of short term recommendations that can be
implemented without the need for a constitutional amendment, and a second set that will require the more arduous, but
necessary process of amending the constitution.
1. Short term recommendations:
a. e Judicial Conduct Board needs assistance in reviewing its internal operating procedures to assure that the
shortcomings evident in the Luzerne County corruption scandal are eradicated. To assist in this important
undertaking, the commission recommends the creation of a small but committed and experienced task force
comprised of experts in the elds of judicial discipline, ethics and investigations with the specic purpose of (1)
reviewing the internal operating procedures of the Judicial Conduct Board as well as the policies dealing with the
interaction between the Conduct Board's sta and its voluntary board; and (2) to make suggestions for
improvement. It is recommended that this task force include representatives of the state bar association. e
commission remains hopeful that the Judicial Conduct Board will cooperate with the task force to implement
meaningful reform to its internal policies and procedures. e commission also recommends that the Judicial
Conduct Board include a section in its next annual report addressing its work with this task force, what changes
were implemented, and how its procedures were improved.
b. In particular, the record demonstrates, both through documentary evidence and board member testimony, that
chief counsel had acquired and exercised far too much autonomy, authority and absolute discretion over how
complaints were investigated, deferred, referred, or resolved. e record further shows that chief counsel would
unilaterally act without the consultation, knowledge or approval of the Judicial Conduct Board. Whether the
evolution of chief counsel's power and autonomy developed with or without the board's approval, the record sadly
compels the conclusion that too much power was vested in chief counsel. e commission strongly recommends
that the Judicial Conduct Board and the task force weigh the obvious need for a strong chief counsel against the
constitutional obligations of the Judicial Conduct Board. e internal operating procedures must provide for clear
descriptions of the duties and responsibilities of the critical sta, create a mechanism for performance review and
accountability, and implement procedures for meaningful oversight of the sta.
c. e Judicial Conduct Board is required under the constitution to provide an annual report of its activities. e
commission recommends that the annual report provide some details as to how the Judicial Conduct Board is
operating, in particular as to how many complaints have been deferred pending criminal investigation. While the
commission recognizes the condentiality that attached to the work of the Judicial Conduct Board, it is also
painfully apparent that the Luzerne County corruption complaints somehow were allowed to languish without
appropriate attention or consideration. It is recommended that the Judicial Conduct Board include within its
annual report an index of all pending case lings, identied only by case number, with an indication as to the
current status of that particular case. If a complaint has not been resolved, then it would appear in each annual
report under its original case number. By providing this generic indexing practice, it will provide a means to
identify any complaints that have been pending without resolution for a substantial period of time.
d. e commission also recommends that the Judicial Conduct Board undertake to revise and update its Web site. It
should provide clear, simple directions to allow the public to le complaints over the internet. In addition, it
should include the reminders to the public and to professionals of their options and ethical responsibilities in
reporting judicial misconduct as more specically explained in the next recommendation.
e. During the course of testimony, it was clear that far too many professionals, let alone lay persons, were wholly
unaware that reporting judicial misconduct to the Judicial Conduct Board was not only an option, but an ethical
responsibility. e commission recommends that the Judicial Conduct Board partner with the Pennsylvania Bar
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Association and its educational arm, the Pennsylvania Bar Institute, to create and implement an educational
program and materials to assure that practicing attorneys and judges are aware of the mandatory ethical obligation
to report judicial misconduct to the Judicial Conduct Board. Moreover, the commission also recommends that the
Judicial Conduct Board and the Pennsylvania Bar Association/Pennsylvania Bar Institute work together to create
educational material for the general public that can be made available at professional oces for purposes of
recognizing judicial misconduct and explaining how to report such misconduct to the Judicial Conduct Board.
f. While the Judicial Conduct Board contends that it lacks sucient resources to fulll its constitutional obligations,
the commission lacks sucient evidence to conclude that the board is not adequately funded. is is plainly a
budgetary issue better addressed between the Judicial Conduct Board and the Legislature.
2. Long term recommendations:
With regard to the long term recommendations, the commission has come to two inescapable conclusions: (1) the
Judicial Conduct Board lacks sucient oversight to assure that it is fullling its constitutional duties and obligations;
and (2) the existing condentiality provisions relating to the work of the Judicial Conduct Board prohibit any
meaningful oversight and accountability.
In order to eectuate the needed reforms to the Judicial Conduct Board, the commission recommends the creation
of a group, perhaps similar to the composition of the Beck Commission, to conduct a constitutional review and
study to determine what changes are necessary to assure oversight and accountability of the Judicial Conduct Board.
In particular, the commission emphasizes the following areas for review:
a. e appointment process for board members and the general board composition;
b. e powers and duties of the board;
c. Determination if the general rules governing the conduct of its members are adequate to discharge the
members' constitutional mandate and if they are being adequately implemented;
d. e creation of an appellate mechanism to the Court of Judicial Discipline for review of the Judicial Conduct
Board's decision to dismiss a complaint;
e. A careful review and revision of Article V, Section 18(a)(8) as it relates to condentiality and accountability of
the Judicial Conduct Board in fullling its constitutional obligations;
f. e creation of an outside administrator and record keeper. Such an administrator would be bound by the
condentiality standards mandated for the board and would, therefore, have access to details about complaints
and their handling. e administrator would then be in a position to audit the board's specic performance.
When warranted, the administrator could promptly question the failure to address complaints, or why
investigations were allowed to languish.

d. recommendatIons regardIng attorney dIscIPlIne

e Interbranch Commission on Juvenile Justice heard testimony that raised questions about whether conduct occurred
during juvenile delinquency hearings that may have violated the Code of Judicial Conduct or the Rules of Professional
Conduct. e commission is concerned at the possibility, if not the probability, that no lawyer practicing in Judge
Ciavarella's courtroom ever led a complaint to the Disciplinary Board against a fellow lawyer alleging a violation of the
Rules of Professional Conduct. In addition, while attorneys witnessing unethical behavior by judges are bound to report
the judges behavior to the Judicial Conduct Board, the Judicial Conduct Board reported that no such complaints were led
by any attorneys present at the juvenile proceedings which have been the subject of the commission's investigation.
e commission recommends:
1. at the Disciplinary Board create appropriate educational materials for the general public and for attorneys. is
will assure that both the bar and the community at large understand what constitutes a violation of the Rules of
Professional Conduct and how to le a complaint.
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2. at the Web site of the Disciplinary Board be redesigned so that it oers a clear and simple mechanism to le
complaints electronically.
3. at the Pennsylvania Continuing Legal Education Board Regulations be amended to provide that of the 12
continuing legal education credit hours a Pennsylvania attorney is required to earn each year, the minimum number
of ethics credits should be increased from one hour to two hours per year; and an attorney should be required to
attend at least one hour of continuing legal education every ve years on the topic of the duty to report misconduct
by judges and other attorneys.
4. at courses which are oered to satisfy the ethics continuing legal education requirement provide meaningful and
inspirational programming.

e. recommendatIons regardIng contInuIng educatIon

e need for judges, prosecutors, defense counsel, hearing ocers and masters to be properly educated about the Juvenile
Act, child development, and problems unique to the relationship between children and their families is readily apparent.
However, there are currently no standards that provide any guidance to the primary participants in the juvenile justice
system regarding the duty of continuing education. erefore, the Interbranch Commission on Juvenile Justice endorses
the training standards adopted by the Pennsylvania District Attorneys Association and the Juvenile Defenders Association
of Pennsylvania.
e recently adopted Standards for Pennsylvania Prosecutors in Juvenile Court recognize that the eective representation
of the Commonwealths interests requires that the juvenile court prosecutor be well versed in the relevant statutory and
procedural mandates, the Juvenile Act and the Rules of Juvenile Court Procedure. Juvenile court prosecutors, therefore,
need to be trained in the statutes and the rules before handling juvenile matters. Furthermore, all juvenile court
prosecutors should be trained in these Standards.
e recently adopted Performance Guidelines for Quality and Eective Juvenile Delinquency Representation recognizes
and incorporates Pennsylvanias Rules of Professional Conduct, Rules of Juvenile Court Procedure and the Juvenile Act.
ey also reect national standards established by the American Bar Association, the National Legal Aid and Defender
Association and its Council of Chief Defenders and the National Juvenile Defender Center. e guidelines will serve as a
training and development tool for new juvenile public defenders, contract and assigned counsel who receive assignments
in juvenile court and arm for experienced attorneys the considerations necessary to deliver quality legal representation.
erefore, the commission recommends all juvenile defense attorneys should be trained in these guidelines before
handling juvenile cases.
e commission recommends that both organizations develop and consistently present continuing legal education courses
to train prosecutors and defense attorneys in their respective standards.
Further, the commission recommends that every judge of the court of common pleas who is assigned to handle matters
involving allegations of delinquency brought under the Juvenile Act be required by the Supreme Court of Pennsylvania to
attend 12 hours of continuing education within 90 days of such assignment. e commission also recommends that
periodic updates in mandatory continuing education be considered by the Supreme Court for all such judges. e
commission further recommends that at least some part of the continuing education be conducted on a regional basis so
judges have the opportunity to discuss and analyze legal issues that may be uniquely regional, and to become familiar with
placement and community-based resource options that may have a common regional connection.
In addition, the commission recommends that the Supreme Court develop mandatory continuing education standards for
juvenile masters and hearing ocers.
Finally, while training provides an appropriate foundation, there must be vigilance by all concerned regarding the
importance of the mission of the juvenile justice system. All too oen during the commission's hearings, there were
references to kiddie court and the juvenile court in Luzerne County being considered a training ground for prosecutors
and defenders. Ocials at the state and county levels must emphasize the importance of balanced and restorative justice,
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and must see to it that the individuals who ll the roles in juvenile justice possess the integrity, the desire and the
commitment to the goals and values of the system. Attitude reects leadership, and the system will not function properly if
it is simply a training ground, or an unwanted stepchild of the entire justice system.

f. recommendatIons regardIng JuVenIle Prosecutors

A prosecutor has a special ethical obligation to be a minister of justice, and this solemn responsibility is enhanced in the
context of juvenile delinquency proceedings under the principles of balanced and restorative justice. While prosecutors
must assure the safety of the community and protect the rights of victims, prosecutors must go further in juvenile cases. A
prosecutor must also weigh the needs of the juvenile oender not with an eye toward punishment but toward
rehabilitation through the least restrictive means necessary.
When this responsibility is considered in light of what occurred in Luzerne County, the prosecutors clearly abdicated their
roles as ministers of justice and simply became passive observers to the tragic injustices that were perpetrated against
juvenile oenders. It is not an understatement to conclude that there was a systematic failure within the Luzerne County
District Attorneys Oce that allowed for the corruption to continue unabated for too long.
First, the record plainly demonstrates that juvenile prosecutors were not properly supervised by the district attorney;
rather, both former District Attorney David Lupas and then-First Assistant (and now current) District Attorney Jacqueline
Musto Carroll incredibly conceded that they had never set foot in a juvenile court throughout their entire careers as
prosecutors. District Attorneys Lupas and Carroll demonstrated no initiative, interest, or concern with what was occurring
in juvenile court. In addition to providing no real supervision of their juvenile prosecutors, it was also apparent that young
prosecutors were le on their own in juvenile court without any substantive training or guidance. As a result, a pattern of
ineective juvenile prosecutors with no concern for the needs of the juvenile oenders emerged in Luzerne County and
sadly repeated itself as inexperienced prosecutors rotated in and out of former Judge Ciavarellas courtroom.
Second, both district attorneys and their juvenile prosecutors blindly accepted the zero-tolerance philosophy advocated by
Ciavarella as a simple unavoidable circumstance over which they had no control. e juvenile prosecutors never advocated
for a change in Ciavarellas draconian placement practices; rather, the juvenile prosecutors simply sat silent while large
numbers of juvenile oenders were ordered into out-of-home placements without adequate grounds or justication.
Rather than seeking justice based upon the circumstance of each juvenile case, the prosecutors became complicit in the
countless acts of injustice by their silence and lack of advocacy.
e inherent unfairness of Ciavarellas practices was apparent even to the young, untrained, and inexperienced prosecutors.
As one prosecutor noted, he was disturbed by the placement of some juvenile oenders for minor oenses, but he did not
know what to do or to whom he should go for guidance. is statement is a striking indictment to the deciencies in the
performance, training, education and supervision of juvenile prosecutors in Luzerne County.
Aer this scandal erupted, District Attorney Carroll took the armative step to reclaim her prosecutorial authority and
fulll the special ethical obligation to do justice in each juvenile case. She has elected to sign every juvenile petition prior to
its ling, thereby ensuring that juvenile prosecutors are involved in each juvenile case from its inception. is election
represents a signicant reform and hopefully marks the beginning of a new prosecutorial philosophy relating to juvenile
justice in Luzerne County.
Further, as noted above, the Pennsylvania District Attorneys Association (PDAA) has taken the armative step of
adopting Standards for Pennsylvania Prosecutors in Juvenile Court. ese new standards clearly enunciate the special
duties of a juvenile prosecutor. e PDAA has undertaken the commitment to ensure that this Commonwealth
never experiences the wholesale abdication of prosecutorial duties and responsibilities like those that occurred in
Luzerne County.
Under the Rules of Professional Conduct, a prosecutor has the obligation to make certain that a juvenile oender
understands the proceedings, comprehends a waiver of any specic rights, and knows the implications of any admissions
or pleas. As these responsibilities are considered in light of the Luzerne County scandal, the record shows that prosecutors
sat through proceedings where juveniles were not represented by counsel, where the court never advised the juvenile of the
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right to counsel, and where the court never provided any meaningful explanation to the unrepresented juvenile as to what
was occurring or the implications that arose from any admission to specic conduct.
e PDAAs new standards make these obligations clear, and emphasize that juvenile prosecutors not only seek a successful
adjudication, but also must take armative steps to ensure that juvenile rights are protected. Moreover, while the Juvenile
Act and rules do not require that a prosecutor be present at any juvenile proceeding, the PDAA has taken the approach that
prosecutors must be present at each and every juvenile proceeding, not only to protect the Commonwealths interests and
the rights of victims, but also to fulll the prosecutors special obligation to protect the rights of juveniles and pursue just
results in each case.
e Interbranch Commission on Juvenile Justice commends the PDAAs prompt creation and adoption of standards for
Pennsylvanias juvenile court prosecutors. e commission views this as an important step toward ensuring that
prosecutors throughout the Commonwealth understand their far-reaching role in juvenile court. e commission,
therefore, supports the precepts articulated in these standards and recommends that the PDAA take any reasonable steps
necessary to train juvenile prosecutors to eectuate the implementation of these standards throughout Pennsylvania.
Finally, the commission recognizes that additional funding will be required for prosecutors to implement these
recommendations. e commission supports increasing prosecutors funding to sucient levels.

g. recommendatIons regardIng JuVenIle defense laWyers

At present, Pennsylvania and Utah are the only states in the nation that do not provide any state funding for indigent
juvenile defense. County budgets must cover all expenses for juvenile defense attorneys in Pennsylvania including essential
support services such as investigators, social workers, paralegals and expert witnesses. Relying solely on counties to
determine how to fund indigent juvenile defense has led to signicant dierences in the quality of representation from one
county to the next across the Commonwealth. In addition, by not providing funding for indigent juvenile defense, the state
does not have a way to ensure that basic caseload and performance standards are met by attorneys representing children in
delinquency proceedings.
e Interbranch Commission on Juvenile Justice heard testimony that juvenile defender case loads in Pennsylvania were
far too high. Few oces had adequate computers, with some oces using outdated computers donated by their colleagues
in the district attorney's oces. Fieen percent of the public defenders did not have adequate telephone service; and 30
percent did not have access to the internet. As a result of varying levels of access to resources, the quality of juvenile
defense services varied dramatically from county to county resulting in justice by geography.
According to the former Luzerne County Chief Public Defender Basil Russin, a shortage of resources played a role in his
decisions about how the Luzerne County juvenile practice was developed. Russin testied that when former Judge
Ciavarella was presiding in juvenile court, his oce handled between two and four cases per week for a total of 100 to 200
cases per year out of a total of 800 to 1,000 delinquency cases per year. Under the supervision of the new juvenile court
judge, David Lupas, it now takes two full days per week for the assigned attorney to handle between 800 and 1,000 cases
per year. is caseload is well in excess of the standard of 200 felony and misdemeanor cases per year for a juvenile defense
attorney recommended by the American Council of Chief Defenders. During an era of tight budgets, Russin explained that
the county commissioners were made aware of increases in caseloads but did not respond favorably. According to Russin,
Last year with my case count up ten percent I got cut a lawyer and got cut a clerical person.
Pennsylvanias obligation to enforce a childs constitutionally guaranteed right to counsel in delinquency proceedings arises
from the Sixth Amendment right to counsel and Fourteenth Amendment right to due process for children that was
established in 1967 in the landmark U.S. Supreme Court case In re Gault, 387 U.S. 1 (1967). Pennsylvania incorporated
these constitutional requirements of due process and the right to counsel for juveniles in 6337 of its Juvenile Act in 1972.
See 42 Pa. C.S. 6337.
e 1968 Public Defender Act specically obligates public defender oces in Pennsylvania to include representation of a
person charged with juvenile delinquency who lacks sucient funds to otherwise retain counsel. See 16 P.S. 9960.6(a) (1).
e Pennsylvania Rules of Juvenile Court Procedure provide for the appointment of counsel if a juvenile is without
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nancial resources or is otherwise unable to employ counsel. See Pa.R.J.C.P. 151(A).e rules also provide for the
assignment of legal counsel separate from the appointment of a guardian ad litem, for a child in a dependency matter who
has been charged with committing a delinquent act. Pa.R.J.C.P. 151(B) (c).
Unfortunately, whether due to indierence, inexperience, incompetence or intimidation, many, though not all of the
defense attorneys in Luzerne County that appeared before Ciavarella, clearly abdicated their responsibilities to zealously
defend their clients and to protect their due process rights.
According to the record, over 54 % of the children who appeared in Ciavarellas courtroom from 2003 to 2008 appeared
without counsel. Public defenders, contract counsel and privately-retained attorneys were present in those courtrooms and
observed the routine violation of the constitutional rights of children and in some cases the violations of the judicial
cannons of ethics. ey had an ethical obligation to speak up. At the bare minimum, they should have contacted their
supervisors in the Public Defenders Oce and the local bar associations or notied the appropriate judicial or attorney
disciplinary organizations.
Many of the juvenile defendants whose rights were violated were represented by counsel. ese attorneys appeared in court
without protest, while large numbers of juvenile oenders were placed in out-of-home facilities without adequate legal
justication. Inexplicably, very few motions for reconsideration or appeals were led. e Juvenile Law Center was one of
the few organizations that challenged the violation of the rights of these juveniles.
e record plainly indicates that the juvenile defenders were not properly supervised by former Chief Defender Russin.
According to his testimony, there was no real supervision in the courtroom, no juvenile-specic training and no
performance reviews.
ere was at least one complaint brought to Russins attention by one of the young assistant public defenders assigned to
juvenile court. at attorney reported that there were lots of youths going unrepresented in Ciavarellas courtroom and
there were improper waivers. No action was taken by Russin in response to this complaint.
rough his silence and the silence of the juvenile defenders on his sta, Russin became complicit in the zero-tolerance
policies instituted by Ciavarella and the routine placement of children for minor oenses and without careful consideration
of their individual circumstances as required by a balanced approach to restorative justice.
As the scandal gained wide attention throughout the state and across the nation, Russin reached out for assistance. In
September 2009, he assigned a skilled and experienced defender to become the juvenile defender and he agreed to accept
appointments by the court to all the juvenile cases where there were no conicts.
Based on the above, the commission makes a series of recommendations bearing on juvenile defense:
1. A state-based funding stream for indigent juvenile defense.
e General Assembly should establish a dedicated funding stream for indigent juvenile defense that supports the
traditional eorts of the counties to provide nancial resources for this constitutionally mandated right to counsel.
2. A Center for Juvenile Defense Excellence.
In order to ensure that children in Pennsylvanias juvenile courts are represented by competent attorneys, technical
assistance required to provide quality representation should be readily available to juvenile defense attorneys
throughout the state. A Pennsylvania Center for Juvenile Defense Excellence would provide support to defense
counsel representing indigent juveniles in delinquency proceedings and would provide a resource for attorneys
representing children in smaller counties to obtain advice and referrals in areas such as special education,
immigration, sex oender registration and civil commitment issues. See Recommendations to the Interbranch
Commission on Juvenile Justice by the Juvenile Indigent Defense Reform Initiative, March 15, 2010.
It is recommended that the center provide an annual report to the governor, the legislature and the Supreme Court.
e commission further recommends that this issue be referred to the Joint State Government Commission where it
can be considered in conjunction with other issues related to indigent defense, such as Senate Resolution 42 of 2007,
by an advisory group composed of stakeholders from throughout the criminal justice system.
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3. Ensuring Access to Defense Counsel

Defense counsel plays an important role in ensuring fairness and equity in the juvenile justice system in
Pennsylvania and in protecting children against abuses of judicial power. Defense lawyers occupy the unique
position of giving children a voice in the process by representing the childs expressed interest. ey protect the due
process rights and liberty of children they represent with pretrial motions, habeas corpus petitions, challenges to
evidence in adjudicatory hearings, motions for reconsideration and appeals. Defense counsel protect their clients'
rights, and are in a position to report judicial and prosecutorial abuses to disciplinary boards. For these reasons the
commission recommends:
A. at all juveniles should be deemed indigent for the purposes of appointment of counsel.
In many counties in Pennsylvania, the courts and public defender oces have relied upon the income of
parents and guardians of juveniles to determine nancial eligibility for the appointment of counsel. In
Luzerne County, former Chief Public Defender Basil Russin testied that he used Poverty Guidelines to
determine eligibility for public defender services.
In such situations, there is an inherent risk that the legal protections aorded juveniles could be eroded by the
limited nancial resources of their parents, particularly those parents whose income is just above the
guidelines, or by the unwillingness of parents to expend their resources. ere is also the risk that the
attorneys hired by parents might rely upon the parents for decision making in a case rather than rely upon the
juvenile as the law requires. Accordingly, the Interbranch Commission for Juvenile Justice recommends that
the Pennsylvania Supreme Court amend the Rule of Juvenile Court Procedure 151 to instruct courts that
juveniles are to be deemed indigent for the purpose of appointment of counsel.
B. Restrict the right of a juvenile to waive the right to counsel and require stand-by counsel if the

juvenile waives counsel.

As noted above, over half of the children who appeared before former Judge Ciavarella waived the right to
counsel. In spite of the protections aorded children since October 2005 by Pennsylvania Rule of Juvenile
Court Procedure 152, the right to counsel was routinely waived.
e commission was asked by experts in the eld to recommend an unwaivable right to counsel. Instead,
however, the commission has chosen to recommend new safeguards and protections for the right to counsel
by strengthening the protections of the waiver rule, increasing access to the counsel through the appointment
process, increasing the protections and speed of the appellate process and strengthening the role of defense
counsel. It is with these considerations in mind that the commission recommends that the Pennsylvania
Supreme Court modify Pennsylvania Rule of Juvenile Court 152 (relating to waiver of counsel) to:
1. Require a juvenile to consult with an attorney prior to waiving counsel at any of the following proceedings:
Detention hearings;
Pretrial hearings;
Hearing to consider transfer to criminal proceedings;
Adjudicatory hearing;
Dispositional hearing;
Dispositional hearing/commitment review hearing;
Probation review hearings; and
2. Retain Section C of Rule 152 which limits the waiver of counsel to the proceeding where the waiver
occurs and authorizes the juvenile to revoke the waiver at any time. It also requires that the juvenile be
informed of the right to counsel at any subsequent proceeding;
3. Require the appointment of stand-by counsel if a juvenile waives counsel at any of the aforementioned
proceedings;
4. Replace the guidance regarding the specics of the colloquy that is currently contained in the Comment
to Rule 152, with provisions in the rule that would detail the specic information that the colloquy is
to elicit.
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C. Implement an appointment system for counsel that avoids the appearance of impropriety.
Where judges appoint counsel that appear before them on specic cases there is an inherent potential conict
between the nancial interests of the attorney in obtaining future appointments and the zealous
representation of the juvenile. e independence of the defense counsel is critical for making client-centered
case decisions. Some counties have chosen wheels or other neutral procedures to accomplish this task. is is
a critical addition to the system of checks and balances needed to ensure the right to counsel. erefore, it is
recommended that the Pennsylvania Supreme Court should work with the Juvenile Defenders Association of
Pennsylvania to establish an independent procedure in each county or regional district to reduce
appointments by judges of lawyers who appear before them.
D. Performance Guidelines for Quality and Eective Juvenile Delinquency Representation
Guidelines serve as a training and development tool for new attorneys who receive delinquency
representation assignments. ey also arm for experienced counsel the considerations necessary to deliver
quality legal representation.
e Juvenile Defenders Association of Pennsylvania (JDAP) has taken the necessary steps to develop and
adopt performance standards for indigent juvenile defense attorneys. e guidelines have also been adopted
by the Public Defenders Association of Pennsylvania (PDA of PA). ese new standards explain the duties
and responsibilities of juvenile defenders at every stage of the juvenile court process. JDAP and PDA of PA
have committed themselves to taking all necessary measures to ensure access to counsel and quality
representation for Pennsylvanias children.
e commission commends the Pennsylvania Commission on Crime and Delinquency (PCCD), the
MacArthur Foundation and JDAP for their prompt support in the creation of a comprehensive juvenile
practice training program for defense counsel in Luzerne County. e Commission also commends JDAP
and the PDA of PA for their adoption of the guidelines. e commission supports the principles articulated in
these standards and recommends that the JDAP work in conjunction with the PDA of PA and the
Pennsylvania Association of Criminal Defense Lawyers to train juvenile defense attorneys to eectuate the
implementation of these standards throughout Pennsylvania.

h. recommendatIons regardIng ethIcs for JuVenIle ProbatIon offIcers

Juvenile Probation Ocers are ocers of the court by denition, and bound by the provisions of the Juvenile Act.
Generally speaking, the ocers are called upon to:
Make investigations, reports, and recommendations to the court;
Receive and examine complaints and charges of delinquency or dependency of a child for the purpose of considering the
commencement of proceedings;
Supervise and assist a child placed on probation or in his or her protective supervision or care by order of the court or
other authority of law;
Make appropriate referrals to other private or public agencies of the community if their assistance appears to be needed
or desirable;
Take custody and detain a child who is under his or her supervision or care as a delinquent or dependent child if the
probation ocer has reasonable cause to believe that the health or safety of the child is in imminent danger, or that he or
she may abscond or be removed from the jurisdiction of the court, or when ordered by the court, or if the child has
violated the conditions of his or her probation, as well as such other duties imposed by the court.
As ocers of the court, juvenile probation ocers must conduct themselves in a manner which avoids the appearance of
impropriety. In all instances while interfacing with the juvenile, family, victims, community-based providers, and private
providers, their recommendations must always be mission-driven, performance-based, and outcome-focused.

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e testimony before the Interbranch Commission on Juvenile Justice reected the potentiality of decisions of juvenile
probation being inuenced by extraneous factors which were not evidence-based surrounding youth appearing in juvenile
court, but rather the derivative of aggressive marketing practices or a by-product of potential conict of interest.
e Interbranch Commission on Juvenile Justice applauds the eorts of the Chief Juvenile Probation Ocers Association
of the Commonwealth in its initiative to develop statewide standards for ethical practices of probation ocers.e
commission recommends that the chief s association, as well as each county probation department, adopt comparable
standards which address the following:
1. e rejection of all gis, souvenirs, and tokens from all private providers who provide services to
juveniles and their families as a result of recommendations by the Juvenile Probation Department.
2. e incorporation by counties entering into contractual agreements with the private providers on behalf
of the probation department limiting providers to merchandizing based on outcomes and services
rather than enticements.
3. Standards barring part-time employment and board of directors' engagement of probation ocers by
private providers unless approved by the chief probation ocer and the juvenile court.
4. Standards surrounding condentiality of cases.
5. Standards surrounding subsequent employment of probation ocers by private providers.
6. Standards surrounding partisan political activity.
e commission recognizes that these recommendations are not all-inclusive and that the chief s association does not have
authority over individual departments of probation in each judicial district. However, the adoption of uniform standards
by the individual districts and the application of those standards would benet the judicial system.

I. recommendatIon regardIng court hIrIng PractIces

Former judges Conahan and Ciavarella hired family members and friends to work in the courts. e Interbranch
Commission on Juvenile Justice determined that this was an extremely detrimental practice. It contributed to a breakdown
in professionalism and to a breakdown in public condence. Ultimately, as some witnesses before the commission testied,
the environment for corruption became more fertile. Court employees were less likely to speak out against judicial
misconduct if they had personal ties to the judges engaging in misconduct.
e commission is concerned that the employment of family members, close personal friends or political associates creates
the perception that hiring decisions are not based on merit and competence and, thereby, undermines public condence in
the courts.
It is therefore recommended that the Court Administrator of Pennsylvania undertake a national study to determine the
highest standards and best practices for court hiring policies and present the ndings of that study to the Supreme Court
for review.

J. recommendatIon regardIng contInuIng suPreme court oVersIght

Since the juvenile justice scandal became public knowledge in Luzerne County in early 2009 there has been a dramatic
public reaction leading to signicant reform in the ways the juvenile court system operates.
Based on a report provided to the Interbranch Commission on Juvenile Justice by the Luzerne County Juvenile Justice
Victim Response Task Force, the commission is aware of changes in the practices and procedures of the juvenile court
under the leadership of Judge David W. Lupas, initiatives to improve the operations of the juvenile probation department,
procedural modications in the Oce of the District Attorney Jacqueline Musto Carroll, enhanced services provided by
the Public Defenders Oce, and programs to respond to the needs of both the original victims and juvenile victims of the
juvenile justice scandal.
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It is clear that signicant eorts have been made, improvements have occurred, and additional changes and improvements
are under consideration. e commission believes credit is due to those who have worked diligently to repair the harm that
has been done and who share a vision of creating a model juvenile justice system.
At the same time, the commission is concerned that the local culture of practice and procedure is so ingrained that there
can be no reasonable assurance the commitment demonstrated to date can be sustained without the ongoing support and
encouragement of the Supreme Court.
e commission, therefore, recommends that the Supreme Court develop a mechanism to provide continuing oversight of
the Luzerne county court system through the oce of the Court Administrator of Pennsylvania and to receive regular
reports from the President Judge of Luzerne County to assure that the programs and procedures are institutionalized and
the juvenile system functions in accordance with the Juvenile Act and the Rules of Juvenile Procedure.

K. recommendatIons regardIng the use of data and statIstIcs

e Juvenile Court Judges Commission (JCJC), the Administrative Oce of Pennsylvania Courts, the Department of
Public Welfare and perhaps other state agencies collect an extensive amount of data about the juvenile justice system. In
addition, the JCJC annually provides a statistical overview of juvenile court dispositions based on data collected as cases
are closed in all 67 counties. While the data is available, there is no meaningful process for converting the data into useful
information that can be used to guide the development of juvenile justice policy and decision-making statewide, or to
identify localized problems in the juvenile justice system.
e Interbranch Commission on Juvenile Justice recommends, therefore, that the JCJC be aorded adequate resources:
1. To study how data can be usefully applied to identify and to solve problems in the juvenile justice
system;
2. To identify what data should be collected and by what agency; and
3. To determine how data should be analyzed and disseminated.
e commission further recommends that all state agencies and entities with relevant information, including the
Administrative Oce of Pennsylvania Courts and the Department of Public Welfare, should collaborate with the JCJC in
that eort.

l. recommendatIons regardIng statIng dIsPosItIonal reasonIng on the record

e Interbranch Commission on Juvenile Justice heard testimony from Luzerne County children and parents that they
entered juvenile court expecting to receive treatment that was fair and evenhanded. Instead, many were subjected to
disproportionately harsh dispositions for minor oenses with no justication. A requirement that juvenile court judges
state the reasons for dispositional orders on the record would add a layer of transparency to juvenile court proceedings that
would help children and families understand the purpose of juvenile court dispositions.
Requiring juvenile court judges to consider the treatment, rehabilitation and supervision needs of each child as well as the
principles of balanced and restorative justice prior to stating the reasons for the disposition would help to ensure that the
principles which should guide every juvenile court disposition would be followed. Additional emphasis on the courts
justication for orders requiring out-of-home placement would serve both as a reminder that out-of-home placement
should occur only when there is a clear necessity to remove the child from the home, but also would assure children and
families that juvenile court judges did not take this step lightly. In cases where a dispositional order was challenged,
appellate courts would have a clear record to review. Accordingly, the commission recommends:
1. e General Assembly amend the Juvenile Act to require juvenile court judges to state on the record
how the disposition ordered furthers the goals of the Juvenile Act and the principles of balanced and
restorative justice; if the disposition is an out-of-home placement, why there is a clear necessity to
remove the child from home.
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2. e Pennsylvania Supreme Court promulgate changes to Rules of Appellate Procedure and Rules of
Juvenile Court Procedure (Rule 512, relating to dispositional hearings) to require Juvenile Court judges
to state on the record how the disposition order furthers the goals of the Juvenile Act and the principles
of balanced and restorative justice; and if the disposition is an out-of-home placement, why there is a
clear necessity to separate the child from the home.
3. e Pennsylvania Supreme Court modify the Comment to Pa. R. J.C.P. 512 to clarify that, prior to
stating the reasons for its disposition, the court should give consideration to the following factors: the
protection of the community; the treatment needs of the juvenile; the educational, health care, and
disability needs of the juvenile; the supervision needs for the juvenile; the development of competencies
to enable the juvenile to become a responsible and productive member of the community;
accountability for the oense(s) committed; and any other factors that the court deems appropriate.

m. recommendatIon to reduce or elImInate the PractIce of shacKlIng

e Interbranch Commission on Juvenile Justice heard testimony that aer disposition, children in Luzerne County were
at times taken from the courtroom in leg shackles and handcus attached to thick leather belts. e use of shackles on
children can be a demeaning and dehumanizing practice that is contrary to the philosophy of balanced and restorative
justice and undermines the goals of providing treatment, rehabilitation and supervision for children. However, there are
certain circumstances where children need to be restrained to protect themselves and others and to maintain security in
the courtroom. Given the complexity of these issues, the commission recommends that the Juvenile Justice Delinquency
Prevention Committee of the Pennsylvania Commission on Crime and Delinquency undertake a study and develop
recommendations on how to eectively address this issue. e goal of the study should be to reduce and if possible
eliminate shackling in Pennsylvanias juvenile courtrooms.

n. recommendatIon regardIng JuVenIle Placement decIsIons

Witnesses before the Interbranch Commission on Juvenile Justice and accompanying exhibits conrmed that during the
years 2003-2008 placement decisions for secure detention in Luzerne County were oen: a) directly driven by police
recommendations at the time of arrest without independent evaluation by the probation department; b) prompted by a
request for a diagnostic evaluation; or c) precipitated by the juvenile court judge as a punitive measure such as for
nonpayment of nes. It is clear that the narrowly-dened mandates of the Juvenile Act and the existing Juvenile Court
Judges' Commission detention standards were disregarded by these practices.
e general detention standards developed by JCJC in response to Coleman v. Stanziani are valid and remain overarching
principles of detention decision-making. Nonetheless, probation ocers, police, prosecutors, victims, family members and
other community stakeholders would greatly benet by the implementation of the Juvenile Detention Alternatives
Initiative (JDAI) model as a detention assessment instrument in order to avoid reckless and thoughtless secure placement
decisions and enhance the objectivity surrounding placement decisions aecting juveniles.
e commission endorses the modication of the JCJC Standards Governing the Use of Secure Detention to incorporate
the use of a detention assessment instrument based on the JDAI model as supported by the Annie E. Casey Foundation.

o. recommendatIon regardIng youth leVel of serVIces InItIatIVe

Under the Juvenile Act, a juvenile courts disposition must be best suited to the childs treatment, supervision, rehabilitation
and welfare. e juvenile court is required to impose the minimum amount of connement consistent with the protection
of the public and the rehabilitative needs of the child. Balanced attention must be given to all of these factors while
focusing on the development of competencies for the child. Clearly, the testimony oered before the Interbranch
Commission on Juvenile Justice displayed an abdication by the Luzerne County juvenile court during 2003-2008 of its
responsibilities under the Juvenile Act in craing appropriate dispositions.
Given the individuality of each adjudicated youth appearing before the court, it is warranted that validated screening tools
and risk assessment to reoend be included by probation as part of the case assessment so that the most complete
information is made available to the court for its decision based upon objective criteria. e Juvenile Court Judges'
Commission, Pennsylvania Commission on Crime and Delinquency (PCCD), and the Chief Probation Ocers
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Association have asked the commission to recommend the Youth Level of Services (YLS) initiative in order to implement
this identied tool as an aide to the decision making of juvenile court judges.
One of the most important aspects of the YLS initiative is that the results from the assessment are being used to develop a
more comprehensive case planning process for juveniles that is focused on reducing identied risk factors. e desired
outcome is that this validated risk/needs assessment will be used in determining appropriate levels of supervision,
establishing measurable case-specic goals, and in allocating the necessary resources to achieve better outcomes for
juveniles and their families, and consequently for our communities. e implementation of the YLS assessment tool will
not restrict judicial dispositional authority. On the contrary, juvenile judges will begin seeing more comprehensive
proposed supervision plans that are directly related to the risks, needs and strengths of each child.
e implementation of the YLS initiative and instrument is being considered for use in 25 additional probation
departments within the Commonwealth as an expansion of the current pilot program of 10 probation departments.
Generally speaking, the utilization of risk assessment and case planning tools by probation departments can promote
greater objectivity in the disposition recommendation to juvenile courts. All risk assessment and planning tools employed
by probation departments for these purposes should be veried as evidence or researched based thereby assuring that they
are valid and reliable measures of the risks and strong predictors of desired outcomes.
Accordingly, the commission recommends the expansion as a pilot program of the use of the Youth Level of Service / Case
Management Inventory (YLS/CMI) risks/needs instrument and the employment by probation departments throughout the
Commonwealth of valid research and other evidence-based risk assessment instruments that have been determined to be
both valid and reliable measures of the predictors of youth crime and recidivism.

P. recommendatIons regardIng aPPellate rIghts

e Interbranch Commission on Juvenile Justice heard testimony from parents of children who appeared in former Judge
Ciavarellas courtroom, who asserted they contacted a variety of governmental agencies and private organizations in an
eort to free their children from unjust detention and placement. ese eorts were oen made at great expense to the
parents, but they rarely achieved success. Aer seemingly exhausting all options in the county and the state, parents
reported seeking assistance from advocacy groups in New Jersey, and as far away as Texas.
e frustration, anguish and pain experienced by children and their parents and conveyed eloquently during their
testimony helped the commission, the citizens of Luzerne County and all concerned parties understand the true
dimensions of this unprecedented tragedy. Parents should not have to exhaust their resources and search throughout the
United States to nd ways to protect the constitutional rights of their children. Additional steps should be taken to ensure
that juveniles understand their appellate rights and are able to take advantage of the right to appeal.
With these considerations in mind the commission recommends the following:
1. e Pennsylvania Supreme Court should promulgate a Rule of Juvenile Court Procedure to include a
form entitled Notice of Right to Seek Appeal and Other Post-Dispositional Relief, similar to Wisconsins
Form JD- 1757, Notice of Right to Seek Post-Judgment Relief. e form should refer children to the
statewide appellate oce. ere should be a requirement that every child adjudicated delinquent in the
juvenile courts of the Commonwealth be given a copy of the form.
2. e Pennsylvania Supreme Court working in conjunction with the Juvenile Court Judges Commission
should develop internet-based resources that will be referenced on the form explaining how the postdispositional process works and providing the names of individuals and organizations that can assist
children and their parents.

Q. recommendatIon regardIng aPPellate reVIeW

1. Timely Appellate Review
Appellate review by the Superior Court of Pennsylvania is essential to the proper functioning of the juvenile
55

justice system because it provides an aggrieved party an opportunity to seek review of the juvenile court
judges decision, and provides a mechanism to correct legal and procedural errors that may have been made
by the judge. To be meaningful, however, appellate review must be completed before the childs placement, or
other disposition, has been completed.
Because many dispositions are completed in 120 days or less, the Interbranch Commission on Juvenile Justice
recommends that an appellate process be developed which assures that any appeal will be nalized, and a
decision rendered by the Superior Court, in 90 days or less from the date the appeal is led.
e commission understands the implementation of this recommendation will present a serious challenge for
the Superior Court given the courts already signicant workload and the complexity of the appeals process as
dened in the Rules of Appellate Procedure.
e commission, therefore, further recommends that the Supreme Courts Appellate Court Procedural Rules
Committee and Juvenile Court Procedural Rules Committee collaborate to develop an expedited appeals
process or, in the alternative, collaborate to develop a process that aords an aggrieved party an option to elect
a mechanism that aords some measure of review of a juvenile court judges decision short of a formal
appellate review in the following proceedings: transfer of a case to a criminal proceeding or the denial of a
request to do so; transfer of a case from criminal proceedings or a denial of a request to do so, or an order of
disposition following an adjudication of delinquency that removes a child from his or her home.
2. Meaningful Appellate Review
e Pennsylvania Constitution gives juveniles the right to appeal and the Rules of Juvenile Court Procedure
require that at the dispositional hearing the judge state on the record that the juvenile has been informed of
the right to le a post-dispositional motion, the right to appeal, the right to counsel on appeal and the time
available to le the appeal. (Pa. Const. Art. 5. Section 9. In re omas, 625 A.2d 150, 153 (Pa. 1990); Pa.
R.J.C.P. 512(C))
Pennsylvanias Juvenile Act guarantees juveniles a right to counsel at all stages of the proceedings. 42 Pa. C.S.
6337. At the appellate level, the promise of counsel could be achieved by developing an oce for attorneys
who are specially trained and adequately compensated to undertake this critical responsibility. Illinois,
Indiana and Wisconsin have developed statewide appellate oces for juveniles that could serve as models.
e commission has recommended training of juvenile defense attorneys. A training division could be set up
within an appellate oce so that appellate attorneys could provide guidance to the indigent juvenile defense
bar relative to the ling of appeals in juvenile matters.
e training of attorneys through statewide and regional sessions could be undertaken throughout the year in
a coordinated fashion, ensuring that an appropriate range of subjects related to substantive, procedural and
ethical issues would be available to meet the requirements set forth by the Supreme Court.
It is recommended that courses be interesting, informative and of high quality, drawing on the best practices
in the eld and on local, state and national experts in the areas of juvenile defense, prosecution and judicial
practices. e courses could also address practices related to juvenile probation and providers.
An appellate oce could work in conjunction with the Juvenile Defenders Association of Pennsylvania, the
Public Defenders Association of Pennsylvania, the Pennsylvania Association of Criminal Defense Lawyers
and other interested parties to develop the training programs.
Accordingly, the commission recommends that the General Assembly consider the creation of a statewide
juvenile appellate oce. e oce would represent children throughout the Commonwealth when necessary
and provide training for juvenile defense attorneys on issues related to appellate practice and new
developments in the law.

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r. recommendatIons regardIng nunc Pro tunc relIef

e Pennsylvania juvenile justice system, unlike the adult system, has no procedure to correct errors that may have
occurred in juvenile court proceedings except by way of direct appeal. If the time limit for ling a direct appeal has expired,
then the juvenile has no formal opportunity to seek relief.
In the adult system, the use of the Post Conviction Relief Act permits those who have been convicted of crime, and for
whom the time for ling a direct appeal has expired, to bring their cases to the attention of the court under certain
limited circumstances.
Whether a similar formal statutory mechanism should be developed in Pennsylvania is beyond the scope of this report.
However, the Interbranch Commission on Juvenile Justice notes the diculty faced by those wrongly adjudicated in
Luzerne County in obtaining review of their cases once the alleged criminal scheme in the juvenile court came to light.
For many, the time limit for ling a direct appeal had long since expired and their only avenue of relief was to le a Kings
Bench Petition with the Supreme Court.
e commission therefore recommends:
1. at consideration be given to creating a mechanism which will aord a juvenile adjudicated delinquent
an avenue to present a petition for relief from a wrongful adjudication even though the period for direct
appeal has expired.
2. at until a formal mechanism is developed for presenting a petition for relief aer the period for direct
appeal has expired, the Superior Court and Supreme Court should liberally allow the ling of appeals
from juvenile adjudications nunc pro tunc (now for then).

s. recommendatIons regardIng county commIssIoners

From the testimony presented at the hearings of the Interbranch Commission on Juvenile Justice, it was apparent there had
been confusion and misunderstanding in Luzerne County about the respective powers and responsibilities of the county
commissioners and the Court of Common Pleas.
In Pennsylvania, county commissioners have well-dened authority over specied operational aspects of county
government. Under the Pennsylvania Constitution, the Court of Common Pleas is a separate and co-equal branch of
government. As a branch of government separate from the commissioners, the judiciary has its own independent set of
constitutional and statutory responsibilities. Admittedly, this complicated system of county governance - of checks and
balances - creates tensions and presents dicult issues when there are attempts to precisely draw the boundaries between
each branchs prerogatives and responsibilities to check and balance the other.
Based on the testimony, however, the commission has concluded that the Luzerne County Commissioners, during the
period from 2002 to 2008, abdicated certain responsibilities by failing to exercise appropriate oversight regarding budget
issues, managing the county-owned juvenile detention facility, and supervising county sta. e commission also
concludes that the president judges during that period failed to promote or preserve the comity which should be expected
between co-equal branches of government.
e commission's hearings, of course, have focused on issues that arose out of the relationship between the Board of
Commissioners and the Court of Common Pleas in Luzerne County. e commission members are aware that similar
issues may exist in other counties in Pennsylvania. e commission concludes that positive steps can be taken both in
Luzerne County and elsewhere to minimize the opportunity for misunderstanding and conict between commissioners
and courts of common pleas.
erefore, the commission recommends:
1. at county commissioners be encouraged to complete the Academy for Excellence in County Government
oered by the County Commissioners Association of Pennsylvania.

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2. at the Pennsylvania Association of Court Management collaborate with the County Commissioners
Association of Pennsylvania to convene educational meetings and seminars to encourage conversation and
mutual understanding among county commissioners and president judges and court administrators of the
courts of common pleas regarding their respective duties and statutory obligations.

t. recommendatIons regardIng the dePartment of educatIon

e manner in which school ocials in Luzerne County handled oenses, especially minor infactions, during school hours
or on school property, came under scrutiny as part of the wide-ranging probe of the Interbranch Commission on Juvenile
Justice. Several witnesses who appeared before the commission spoke of how school ocials praised then Judge Ciavarella
for his "get tough" policy that resulted in signicantly higher placement rates. Two of those witnesses, senior Berks County
Judge Arthur Grim, who was appointed by the State Supreme Court to review Ciavarella's cases and Basil Russin, Luzerne
County's Chief Public Defender, questioned whether school districts had done enough to resolve cases outside of court.
Judge Grim said he felt school ocials supported Ciavarella's policy without giving thought to "what it really meant" for
juveniles - many of whom ended up in out-of-home placement for minor oenses based on Ciavarella's zero-tolerance for
oenses committed at school. "ey would immediately pick up the phone and call police because they knew . . . if they got
in front of a get tough Judge, the troublemaker would be out of their hair," Judge Grim informed the commission. Russin
added that "instead of handling it as an interdisciplinary matter, such as in-school suspension, they'd call police and it
would go to Juvenile Court." Notably, Russin also commented that he believed many of the schools have since changed
their philosophies, and he believed that the number of referrals from schools has decreased.
e Commonwealth's Secretary of Education said that Pennsylvania has three broad goals for education: (a) high student
performance; (b) high quality teaching and administration; and (c) a safe, secure and supportive environment for each
school and every child.
To achieve these goals, the Department of Education has provided the public schools with information and tool kits that
emphasize prevention, mitigation, preparedness, response and recovery. ese protocols were made available to ensure
that when an incident happens, schools and their campuses can quickly and adequately restore the school climate to
optimal learning conditions.
e juvenile justice system serves as an important public safety role. ere is a general consensus within Pennsylvania that
there are many dedicated juvenile justice professionals who have devoted their lives to helping youth turn around their
lives. However, too oen, schools use the justice system as the school disciplinarian and juvenile courts are too willing to
serve in this role. Although not listed as one of the Department of Education's protocols, schools in Luzerne County too
quickly turned to the juvenile justice system as a vehicle to address school climate and learning condition. As a result, too
many youths unnecessarily entered the juvenile justice system.
Although the Department of Education developed and, arguably, had available alternative methods of improving students'
behavior, programs that are similar to those that have been developed by schools across the country, schools in Luzerne
County chose to have their students arrested. e commission agrees with experts in the eld of education that, for most
students, there are alternatives that are much better and eective in ensuring a safe, secure and supportive environment for
each child who attends school in Pennsylvania. Despite their respective stated and/or aspirational goals, the commission
believes that both the Pennsylvania Department of Education, specically the local schools in Luzerne County, as well as
local juvenile justice system, specically the District Attorney's Oce and law enforcement, failed to comport with their
duties and obligations in achieving an educationally stimulating but safe environment for every child who attended a
public school in Pennsylvania. To address the respective organizations' shortcomings and in an eort to ensure the abovementioned goals are achieved, the commission recommends the following:
e Pennsylvania Department of Education, the Pennsylvania District Attorney's Association, law enforcement, the
Juvenile Court Judges' Commission and other key individuals and groups associated with the juvenile justice system in
Pennsylvania collaborate to determine what improvements would be necessary to assure the implementation and oversight
of the Commonwealth of Pennsylvania's goal of providing a safe, secure and supportive environment for each school and
every child in Pennsylvania. In particular, the commission emphasizes the following areas for consideration:

58

1. In Luzerne County, school referrals made under zero-tolerance policies were integral to the overall scheme as
they provided an easy removal of children from their homes and schools and a constant stream of children to
be placed into detention. e commission believes that zero-tolerance and allowing schools to use the justice
system as its school disciplinarian has no place in the educational process or in the juvenile court system. To
that end, it is recommended the entities identied above develop and expand programs that would support atrisk students and expand aordable and available diversionary programs, while at the same time reduce
unnecessary and inappropriate school referrals;
2. During the course of the testimony, it was clear that the Department of Education and the schools were not
thoroughly familiar with how the juvenile justice system operates. Nor did the department seem to
understand that juvenile justice and traditional educational programs cannot be viewed as separate silos.
Even when youth are appropriately referred to the juvenile justice system, their connection to traditional
schools is never severed. Probationers attend school and youth who are placed oen eventually return to their
neighborhood schools. Similarly, law enforcement, the District Attorney's Oce, and other key groups
associated with the juvenile justice system, should be better informed of how schools appropriately deal with
discipline issues when they arise on school campuses. erefore, the commission recommends these groups
collaborate to create an educational program necessary to assure that all stakeholders are fully aware of how
each of these organizations operate. Additionally, resources must be available to achieve the stated and
aspirational goals of both the Department of Education and the juvenile justice system. It is suggested that the
Department of Education consider partnering with the Pennsylvania Bar Association to assist in the creation
and implementation of these programs, especially since the PBA has a focus on law-related education and has
experience developing programs that protect, motivate and educate Pennsylvania's children;
3. It is further recommended that the above-stated groups work together to foster a relationship of cooperation,
mutual support and the sharing of information and resources between their various organizations as they
work together to maintain physical security and safety of schools in their districts as well as achieving the
goals of the Pennsylvania juvenile justice system - holding youth accountable to victims, providing
competency development for youth and ensuring community safety;
4. In addition, the commission heard testimony about Luzerne County students who were on probation being
drug tested in school and having their juvenile justice status revealed to the rest of the student body. ese
students were embarrassed and even ostracized by their classmates and teachers. e commission
recommends that school districts develop protocols to keep the juvenile justice status of students condential;
5. Finally, the commission heard testimony from a student who described the educational eorts in the facility
where she was sent as wholly ineective, and performed by unlicensed teachers. is is unacceptable. e
commission recommends that the Department of Education cooperate with the Department of Public Welfare
to review curricula at all licensed placement facilities to ensure properly accredited teachers are in place, and a
complete and benecial education plan is in eect.

59

V. conclusIon
e Luzerne County juvenile justice scandal cannot be understood as simply the isolated acts of former judges Conahan
and Ciavarella. While this scandal is known as kids for cash and news reports and commentaries frequently add that the
two have been criminally engaged in sending children to placement in return for $2.8 million in kickbacks, the Interbranch
Commission on Juvenile Justice concluded that the breakdown of the juvenile justice system in Luzerne County was more
pervasive and insidious.
While Conahan has agreed to plead guilty, the criminality of Ciavarella's actions and of his motives have yet to be proven.
Ciavarella's trial in federal court is still pending as this report is led. However, it is now well-demonstrated that Conahan
and Ciavarella created an atmosphere in which childrens constitutional rights were routinely trampled from the time
Ciavarella became the juvenile court judge in 1996.
Although the Juvenile Law Center brought attention to the problem in the spring of 2008 by ling a Kings Bench Petition
with the Supreme Court, not until the United States Attorney led criminal charges in January 2009 alleging that
Ciavarellas motivation was criminal did the Luzerne County community and the juvenile justice system statewide take
signicant notice of Ciavarellas courtroom practices.
His practices have been explained as taking cash for kids, an allegation yet to be proved, but those practices are far more
troubling because at their core is not only the alleged criminality but undisputed incompetence which, coupled with an
abuse of power condoned by the community, led essentially to a collapse of the rule of law.
While the federal indictment brought widespread attention to Ciavarellas courtroom practices, his conduct had been
ongoing for over a decade. His penchant for connement arguably created the opportunity for prot, but it is clear that the
opportunity for prot did not create the penchant for connement.
His practices were no secret. ey were well-known by the oces of the district attorney and public defender, defense
counsel, police, probation ocers, and school ocials. Many child victims or their parents testied they were well aware of
Ciavarellas reputation for sending kids away and his abrupt courtroom demeanor. Indeed, Ciavarella himself virtually
advertised his approach to hard line juvenile justice in his annual trips to Luzerne County schools where he told students
what would happen to them if they came to his court. When children arrived in his courtroom, he frequently reminded
them of what he had said during his school visits. In 2004, the times leader, a Wilkes-Barre newspaper, published a series
of articles over two days detailing Ciavarellas views and practices. e following year, he won retention with over 59% of
the vote, some ten percentage points more than Supreme Court Justices Russell Nigro and Sandra Newman, who were also
up for retention, received in Luzerne County.
Ciavarellas courtroom practices, coupled with the administrative practices he and Conahan implemented as president
judges, created an atmosphere in which coercive power trumped law and procedure. Whether because of intimidation,
incompetence, inexperience, indierence or corruption, every source of check and balance on this abuse of power failed
to one degree or another, some more than others: the Board of Judges, prosecutors and defense attorneys, probation
ocers, police, school ocials, the Judicial Conduct Board, the Disciplinary Board, community leadership, the electoral
process, court administration, county government, the procedural protections aorded by statute and rules of court, and
appellate review.
All three branches of government have historically shared the constitutional responsibility to assure that our justice system
functions properly. e origins of the Luzerne County juvenile justice scandal sprang from a breakdown by all three
branches of government, at both the county and state level, in meeting their shared and independent responsibilities.
Looking to the future, however, the commission believes the primary responsibility for the quality of our justice system
must logically rest with the Supreme Court of Pennsylvania. Based on the evidence presented in its hearings, the
commission does not know whether the breakdown of the Luzerne County juvenile justice system can be traced to a lack of
funding or other resources.
Nevertheless, it is clear that before the Supreme Court can fulll its responsibility, and before it can be held accountable for
any failure to meet its responsibility, it must have the appropriate nancial resources and sta required to perform the
60

necessary tasks of adjudication, education, oversight and, where justied, sanction. Assuring that appropriate resources are
provided to permit the justice system to function properly is, of course, the responsibility of the General Assembly, the
governor, and county government.
As the Supreme Court, the General Assembly and the governor consider how to meet their respective responsibilities to
the children of Pennsylvania, the commission believes it is important that they keep in mind, and explain to the public, the
unique role that the juvenile court plays in our system of law.
From the testimony the commission heard, it appears the public does not always understand how the juvenile justice
system works and has conicting ideas about what it is expected to accomplish.
Some erroneously believe the system should be punitive in nature and emphasize punishment; others believe the system
should be protective and emphasize education and socialization. Understandably, these potentially conicting approaches
can lead the public, lawmakers, judges, and attorneys to a muddled conclusion about what exactly the juvenile system does
and should do.
On the one hand, society expects juvenile courts to be places where children learn the consequences of engaging in
unlawful conduct and to be places where punishment is a reality. As a result, an adjudication of delinquency can carry
the possibility of very signicant and lifelong eects, including out-of-home placement, disqualication from military
service, Megans Law registration, and enhanced sentencing for adult crimes. Given these possible consequences, children
must be aorded constitutionally required due process protections with all the formality and associated procedural rigidity
they entail.
On the other hand, society thinks of juvenile courts as problem-solving courts. As problem-solving courts, they should
have the exibility and creativity needed to address the unique problems of childhood behavior and to be places of shelter
and protection.
Compounding the misunderstanding that arises from these potentially conicting approaches is the fact that there exists
an inaccurate perception about the children who come into the juvenile courts. While news accounts oen evoke images of
juvenile predators or gang leaders, in fact such cases are a relative rarity. e reality is that in our juvenile justice system
it is only a very small percentage of cases and frequently the ones which garner large headlines that constitute serious
criminal oenses.
Instead our juvenile courts routinely deal with a less serious range of conduct cases arising exactly out of the kinds of
behaviors one might expect of children not yet mature in body or mind. More oen, the juvenile court is dealing with
children who frequently are troubled by mental illness, or who are themselves being abused or neglected, or who are
simply immature. ese are the children who will benet from the supervision of the juvenile court and who are unlikely
to return to court, as either juveniles or adults.
Nevertheless, those competing, sometimes conicting, visions create signicant systemic tensions and demand unique
skills from all who participate in the system. It takes a special understanding by judges, prosecutors and defense attorneys
to handle these cases. It is an understanding that is borne of education, experience and professional commitment to this
important, and undervalued, work.
While the commission has heard speculation that what occurred in Luzerne County could occur elsewhere in
Pennsylvania, the investigation uncovered no evidence of pervasive or systemic breakdown in the juvenile justice system
anywhere else on the scale that occurred in Luzerne County. erefore, the commission does not perceive a need for a
pervasive or systemic overhaul of the juvenile justice system as it is currently established. It is a system that is
fundamentally sound and, except for those recommendations in this report, more rules, procedural processes or statutory
requirements will simply add administrative burdens and operational costs that will not materially benet children, deter
judicial abuse, or protect our communities.
Clearly, a juvenile justice system in a state as diverse as Pennsylvania and that addresses the conduct of children from age
10 and continuing to, in some cases, 21, must provide a wide range of options if we are to address the three prongs of
61

balanced and restorative justice accountability, competency development of children, and community protection. e
strength and eectiveness of that system must depend on properly educated judges, prosecutors, defense attorneys, victim
services representatives, and probation ocers who are aorded the maximum exibility possible to address the
constellation of problems that bring children before our juvenile courts.
ere is, aer all, no more basic and fundamental principle of civil society than an acknowledgment of the mutual
obligation that all citizens share a solemn responsibility for the safety, well-being and welfare of all other citizens. at is all
the more true when those citizens are children, the most vulnerable of all our citizens.
e collapse of the juvenile justice system in Luzerne County carries with it sad lessons. Most important, the experience
demonstrates what happens when judicial power is divorced from the constraints of law, when slogans such as zerotolerance masquerade as thoughtful philosophy, and when judicial courage and compassion are replaced with a
self-serving cunning.
Preservation of democracy depends on the preservation of the rule of law, and if we cannot have condence in the fairness
and honesty of those who make, apply and enforce our laws, then democracy itself is at risk.
As a commission, we recognize that whether what happened in the Luzerne County juvenile justice system was the result
of malignant criminality or benign incompetence is not a question for us to answer. And it makes no dierence, aer all, to
the children who were unlawfully adjudicated and their parents, or to the original victims of crime who have been denied
their day in court. Either way the harm has been done. e commission's responsibility has been to develop
recommendations to guard against it happening again.
We understand that our recommendations oer little protection against determined greed, avarice and criminality. But
based on the testimony presented at our hearings, we also understand that many otherwise good and responsible people
simply lost their way and chose accommodation over principle, and passivity over vigilance. To the extent that the
commission's work will lead others to rearm their commitment to the cause of justice, and to encourage others to take
action necessary to improve and reform our legal system, then as a Commonwealth we will have redeemed ourselves in
some small way for the myriad failings that undermined the rule of law.

62

July 2013

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As part of the fallout from the kids

for cash scandal in Pennsylvania, in
2009 the convictions of over 4,000 juvenile
offenders were expunged.
They were determined to have been entered as part of a
scheme involving
the Pennsylvania juvenile court judge who routinely sentenced juveniles

to a private juvenile detention facility for minor offenses in exchange for

a
secret finders fee from the owner of the facility. In an
article published in the May
2011 Bar Journal, I discussed the role of
attorneys in failing to expose the actions of this
judge. While attorneys who
appeared regularly in the judges court were not privy to the
financial scheme,
between 2003 and 2008 they routinely witnessed the judge
unlawfully sentencing
minors to the detention facility without counsel, without waivers
of the right
to counsel and without an individual assessment of the juveniles offense or

circumstances. During the subsequent investigation, attorneys and others who

appeared frequently in the judges court explained that they closed their eyes
and ears
to these apparent abuses out of fear of retaliation from the judge. The
resulting silence
occurred notwithstanding the requirement in Pennsylvania
Professional Conduct Rule
8.3 that a lawyer who knows that a judge has
committed a violation of applicable rules
of judicial conduct that raises a substantial
question as to the judges fitness for office
shall inform the appropriate
authority.
The reluctance to report judicial misconduct
is evidenced most by those who are most
vulnerable to retribution or
retaliation attorneys, court employees, and other judges.
These are the
individuals in the best position to recognize judicial misconduct and the
most
likely to be a witness to it. In California in 2012, only five percent of the

complaints received by the Commission on Judicial Performance came from

attorneys,
court employees and judges; yet, complaints from those sources
resulted in 37 percent
of the discipline imposed.
In order to fulfill the
commissions mandate to protect the public, to ensure that
information about
unethical judicial conduct reaches the commission, the disciplinary
process
must safeguard the filing of complaints and the cooperation of witnesses during

investigations. The primary way that this is accomplished is by affording

confidentiality
to those who come forward and provide information about
judicial misconduct. Under
the commissions rules, disclosure of witness
statements is only made to the judge if
formal charges are filed, which occurs
in approximately one to four cases a year.
This year, during the commissions
biennial review of its rules, the California Judges
Association (CJA) asked the
commission to adopt a rule that would have required the
commission to provide
full discovery to the judge before the commission has completed
its investigation,
including disclosing the identity of the complainant and all witnesses,
and
turning over witness statements. After careful consideration, the commission

decided not to adopt CJAs proposed rule because eliminating confidentiality of

complainants and witnesses when no formal charges are brought would severely

Share


compromise the commissions investigation of complaints of judicial misconduct
and
jeopardize protection of the public. Instead, the commission adopted rules,
consistent
with its long-standing practice and the practice of the State Bar
and other professional
oversight agencies, which guarantee that judges receive
sufficient information to
respond effectively to the allegations of misconduct
during the investigation, without
divulging the identity of the whistleblower
complainant or witnesses. These rules
balance the commissions responsibility
to ensure that the disciplinary process complies
with due process and is fair
to the judges who are under investigation with the
commissions mandate to
protect the public through an effective investigation
process.
Only one state, Alabama, provides
full discovery before formal charges are filed in
judicial disciplinary
proceedings. Complaints dropped almost by half when Alabama
amended its rules
in 2001 to require disclosure of the complaint and all supporting
materials. An
American Bar Association report concluded that Alabamas procedures
conflict
with national practice and are not protective of the public. They unduly burden

the system, deter the filing of valid complaints, and compromise the ability of
the
commission to effectively conduct a proper investigation. (American Bar
Association
Standing Committee on Professional Discipline, Alabama: Report on
the Judicial
Discipline System (March 2009) (ABA Report), p. 14.)
Regardless of whether a judge would
actually retaliate against a complainant, the mere
possibility of retaliation
is sufficient to deter the reporting of judicial misconduct. If
confidentiality
were not guaranteed during the commissions investigation, lawyers who
appear
regularly before a judge would naturally be concerned that reporting judicial

misconduct and cooperating with the commissions investigation will have negative

ramifications not only for themselves, but also for present and future
clients. Court
employees and others whose livelihood depends on their
association with the court
(interpreters, probation officers, etc.) would be
equally, if not more, reluctant to file a
complaint or cooperate with the
commissions investigation knowing their identity
would be disclosed to the
judge. The ABA report on Alabamas judicial disciplinary
system concluded with
respect to Alabamas disclosure rules, This practice,
particularly the
revelation of the complainants identity, has a chilling effect on those
who
may want to file a complaint against a judge. Specific instances were described
to
the team by a range of interviewees, including but not limited to potential

complainants, actual complainants, lawyers and judges. (ABA Report, p. 19.)

The Pennsylvania kids for cash scandal illustrates the potentially devastating
consequences
when attorneys and those associated with the court are reluctant to
report
misconduct. Whistleblowers filing complaints regarding improper governmental

activity are guaranteed protection, including confidentiality, under

Californias
Whistleblower Protection Act. (Gov. Code, 8547.5, 8547.6,
8547.7, subd. (c).) Those
in the best position to provide accurate and
verifiable information about serious judicial
misconduct deserve no less.
Janice M. Brickley is Legal
Advisor to Commissioners at the California
Commission
on Judicial Performance.

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JUDICIAL MISCONDUCT

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ATTORNEY MISCONDUCT

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Judge Pro Tem Attorney "Cartel" Controls Court

Operations, Charge Whistleblowers

MATTHEW J. GARY
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Sacramento Family Court News Exclusive Investigative Report

This investigative report is ongoing and was last updated in June, 2015.

ARTS & CULTURE

(23)
CHILD CUSTODY
(22)

As many of the articles on our main page reflect,

Sacramento Superior Courtwhistleblowers and
watchdogs contendthat a "cartel" of local family
lawattorneys receive kickbacks and other forms
ofpreferential treatment from family
courtjudges, administrators and employees.

The lawyers receive an assortment of illegal

kickbacks because they are members of the
Sacramento County Bar Association Family
Law Section,work as part-time judges,and
run the family court settlement conference
program on behalf of the court.

The kickbacks usually consist of "rubberstamped" court orders which are contrary to
established law, and cannot be attributed to the
exercise of judicial discretion.Most of the
illegal orders are issued against indigent, or
financially disadvantaged "pro per" parties
without an attorney. Manyof the pro pers also
are disabled.

The ultimate consequences of the systemic

Sacramento Family Court reform advocates assert that collusion
divorce court corruption include lopsided
between judges and local attorneysdeprives financially disadvantaged,
divisions of community property, illegal child
unrepresented pro per court users of their parental rights, community
assets, and due process and access to the court constitutional rights.
custody arrangements and the deprivation of
parental rights, and unlawful child and spousal
support terms. Court reform advocates assert the racketeering enterprise also has resulted in pro
perhomelessness, andcaused, or contributed to at least two child deaths.

The alleged criminal conduct also deprives victims of their state and federal constitutional rights, including due

SCBA
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ROBERT SAUNDERS
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CHARLOTTE KEELEY
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JAMES M. MIZE
(17)
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CARLSSON CASE
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process, equal protection of law, access to the courts, and the fundamental liberty interest in the care,
management and companionship of their own children.

Court watchdogs charge that the settlement conference kickback arrangement between the public court and private
sector attorneys constitutes aracketeering enterprisewhich also deprives the public of thefederally
protectedright tohonest government services.The alleged federal crimes also include thetheft, misuse, or
conversion of federal fundsreceived by the court, predicate acts ofmail or wire fraud,andpredicate state law
crimes, including obstruction of justice and child abduction.

WOODRUFF O'HAIR
POSNER and SALINGER

(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
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(10)

With the help of court employeewhistleblowers, Sacramento Family Court News has partially reconstructed the
framework of the alleged criminal enterprise that, in size and scope, rivals theKids for Cashcourt scandal in
Luzerne County, Pennsylvania, and the Orange County Superior Court case-fixing corruption scheme recently
exposed by the FBI.

SHARON A. LUERAS
(10)

JESSICA HERNANDEZ
(8)

Settlement Conference Program Quid Pro Quo Arrangement

CHRISTINA VOLKERS
(8)
FERRIS CASE
(8)

JULIE SETZER
(7)
The current day Sacramento County Family Court system andattorney operated settlement conference program
was set up in 1991 by and for the lawyers of theSacramento County Bar Association Family Law Section,
according to the sworn testimony of controversial family court Judge Peter J. McBrien at his
2009Commission on Judicial Performance disciplinary proceedings. Click here to read Judge McBrien's
testimony.

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In his own testimony during the same proceedings, local veteran family law attorney and judge pro tem Robert J.
O'Hair corroborated McBrien's testimony and attested to McBrien's character and value to Sacramento County Bar
Association Family Law Section members. Click here to view this excerpt of O'Hair's testimony. To view O'Hair's
complete testimony, click here.

CANTIL-SAKAUYE
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THADD BLIZZARD
(5)

Reducing the Caseload and Workload of Judges and Court Staff in Exchange for Kickbacks

One objective of the illegal public-private partnership is to significantly reduce the caseload, and workload of fulltime judges by having private sector lawyers - instead of judges or court staff - operate the settlement program,
according to watchdogs.

At the settlement conferences, judge pro tem attorneys pressure divorcing couples to settle cases so they won't
use the trial court services, including law and motion hearings, ordinarily required to resolve a contested divorce. In
many cases, two lawyers - one acting as a temporary judge - with social and professional ties team up against an
unrepresented pro per to compel one-sided settlement terms. Accounts of coercive and deceptive tactics are
common.

Under the quid pro quo agreement, in exchange for reducing the workload of judges and court staff, as
opportunities arise the temporary judge attorneys are provided reciprocalkickbacks, gratuities, or emoluments
when representing clients in court. The issuance and receipt of the reciprocal benefits violates several state and
federal criminal, and civil, laws.

CHRISTINA ARCURI
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FAMILY LAW FACILITATOR

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(4)

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Reciprocal benefits include the issuance ofdemonstrably illegal court orders that have ignored, and even
authorized criminal conduct by judge pro tem attorneys and their clients, including criminal child abduction.

LAW BLOGS WE LIKE

In one case, a judge ordered the illegal arrest and assault of a disabled pro per to benefit the opposing, part-time
judge attorney. A court employee whistleblower leaked a courtroom security video of the incident. The judge pro
tem lawyer subsequently was caught on court reporter transcript defending the judge andlying about the arrest
and assault, portraying the disabled victim as being at fault.

The consistent, statistically impossible in-court success rate of judge pro tem attorneys has provided
themprominence, client referrals, wealth, and a substantial monopoly on the Sacramento County divorce and
family law business. Whistleblowers point out that this benefit of the alleged criminal organization also implicates
consumer protection andantitrust laws, including the CaliforniaUnfair Business Practices Act.

Racketeering Scheme Insulates Members from Government Oversight and Accountability

The quid pro quo arrangement also involves what whistleblowers assert is a reciprocal protection racket that
conceals the organization from discovery by law enforcement agencies and state oversight authorities, including
the Commission on Judicial Performance, responsible for judge misconduct, and the State Bar Association,
responsible for attorney accountability and discipline.

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Case audits conducted by SFCN show that judge pro tem attorneys routinely violate state law, court rules, and
attorney ethics rules, but are never reported to the State Bar, or assessed fines, penalties or "sanctions" by fulltime judges as required by state law.

California Lawyer Magazine

Pro pers who attempt to report judge pro tem attorney misconduct to the State Bar are told they need a court order
from a judge before a disciplinary investigation against an opposing attorney can take place. There are no known
instances where a judge issued such an order.

Metropolitan News
Enterprise

On the other hand, at the request of cartel attorneys, pro per litigants are routinely punished by judges with illegal
fines, draconian financial sanctions, and other types of punishment to discourage them from returning to
court, and to coerce them to accept settlement terms dictated by the opposing judge pro tem lawyers.

Google Scholar-Includes
Unpublished Case Law

Attorneys provide judges reciprocal protection by not reporting the judicial misconduct, Code of Judicial Ethics
violations, and criminal conduct committed by full-time judge cartel members. And the lawyers do more.

To help conceal and ensure the continuity of the enterprise, on the rare occasion when full-time judges doface
investigation by the Commission on Judicial Performance, members of the cartel provide false, misleading, or
otherwise gratuitous character witness testimony and other forms of support for the offending judge. The
testimony and support is designed to, and does reduce or eliminate potential punishment by the CJP, ensuring
judge members remain on the bench.

Alleged RICO Racketeering Enterprise Evidence

Court reform and accountability advocates assert that the local family law bar- through the Family Law
ExecutiveCommitteeor FLEC - continues to control for the financial gain of members virtually all aspects of court
operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and
bias against unrepresented litigants and"outsider" attorneys,including:
Divorce Corp, a documentary film that "exposes the
corrupt and collusive industry of family law in the
United States" was released in major U.S. cities on
January 10, 2014. After a nationwide search for the
most egregious examples of family court corruption,
the movie's production team ultimately included
fourcases from Sacramento County in the film,
more than any other jurisdiction.
Judge pro tem attorneys Charlotte Keeley, Richard
Sokol, Elaine Van Beveren and Dianne Fetzer are
each accused of unethical conduct in the problem
cases included in the movie. The infamous Carlsson
case, featuring judge pro tem attorney Charlotte
Keeley and Judge Peter McBrien is the central case
profiled in the documentary, with Sacramento
County portrayed as theGround Zeroof family court
corruption and collusion in the U.S. Click here for our
complete coverage of Divorce Corp.
Judge Thadd Blizzard issued a rubber-stamped,
kickback order in November, 2013 for judge pro tem
attorney Richard Sokol authorizing an illegal out-ofstate move away and child abduction by Sokol's client,
April Berger. The opposing counsel is an "outsider"
The 2014 documentary film Divorce Corp exposed court
corruption throughout the United States and designated
attorney from San Francisco who was dumbfounded
Sacramento County as the worst-of-the-worst.
by the order. Click here for our exclusive report,
which includes the complete court reporter transcript
from the hearing. Click here for our earlier report on the unethical practice of "hometowning" and the
prejudicial treatment of outsider attorneys.
Whistleblower leaked court records indicate that Sacramento Bar Association Family Law
Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of
justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in
a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of
justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For
our complete investigative report,click here.
Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a
California Rule of Court prohibiting temporary judges from serving in family law cases where one party
is self-represented and the other party is represented by an attorney or is an attorney. The orders were
renewed by Presiding Judge Laurie M. Earl in February, 2013.Click here for details.

Courthouse News Service

California Official Case Law

California Statutes

CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar
Association

Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory
California Coalition for
Families and Children
California Protective
Parents Association
Center for Judicial
Excellence
Courageous Kids Network
Divorce & Family Law News
Divorce Corp
Divorced Girl Smiling
Family Law Case Law from
FindLaw
Family Law Courts.com
Family Law Updates at
JDSupra Law News

Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to
opposing parties when a judge pro tem working as a private attorney represents a client in family
court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest
posts.
Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law
Executive Committeefor the financial benefit of private sector attorneys, and often disadvantage the
70 percent of court users without lawyers, according to family court watchdogs and whistleblowers.
For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial
Performance,McBrien described seeking and obtaining permission from FLEC to change a local rule.
Click here and here.

In November, 2012 Sacramento

Family Court Judge Jaime R.
Romanissued a rubber-stamped,
kickback orderdeclaring a family
court party a vexatious litigant and
ordering him to pay $2,500 to the
opposing attorney, both without
holding the court hearing required by
law. The opposing attorney who
requested the orders is Judge Pro
Tem Charlotte Keeley. The
blatantly illegal orders resulted in
both an unnecessary state court
appeal and federal litigation,
wasting scarce judicial resources
and costing taxpayers significant
sums.Click here for our exclusive
coverage of the case.
Judge Matthew Gary used an
unlawful fee waiver hearing to both
obstruct an appeal of his own orders
and help a client of judgepro tem
attorney Paula Salinger avoid
paying spousal support. Click here
for our investigative report.

Fathers 4 Justice
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Divorce attorney Charlotte Keeley (R) and her client Katina Rapton of
Mel Rapton Honda leave a court hearing. Keeley reportedly has billed
Rapton more than $1 million in connection with a child custody dispute.

An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support
order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of
temporary judge Scott Buchanan. The rubber-stamped, kickback child supportorder, and other
proceedings in the case were so outrageous that the pro per is now represented on appeal by a team
of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster.
For our exclusive, ongoing reports on the case, click here.
Judge pro tem attorneys Richard Sokol and Elaine Van Beverenhelped conceal judge misconduct
and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to
an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van
Beveren failed to report the misconduct of Judge Matthew Gary as required by state law.Van
Beveren isan officer of the SCBA Family Law Executive Committee.Click here for our exclusive
report...
...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and
misleading information about the unlawful contempt of court and resisting arrest incident. The
apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct,
trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up
reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government
whistleblower. Click here for details.Watch the exclusive Sacramento Family Court News video
below:

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In 2008controversial family courtJudge Peter J. McBriendeprived a family court litigant of a fair trial
in a case where the winning party was represented by judge protemattorney Charlotte Keeley. In a
scathing, published opinion, the 3rd District Court of Appealreversed in full and ordered a new
trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's
conduct in thecase as a "judicial reign of terror."McBrien subsequently was disciplined by the
Commission on Judicial Performance for multiple acts of misconduct in 2009.Click here to read the
court of appeal decision. Click here to read the disciplinary decision issued by the CJP.
Judge pro tem attorneysCamille Hemmer,Robert O'Hair,Jerry GuthrieandRussell Carlsoneach
testified in support ofJudge Peter J. McBrienwhen thecontroversialjudge was facing removal from
the bench by theCommission on Judicial Performancein 2009.As a sworn temporary judges aware
of McBrien's misconduct, each wasrequired byCanon 3D(1)of theCode of Judicial Ethicsto take or
initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a
character witnessin supportof the judge. In theCJP'sfinal disciplinary decision allowing McBrien to
remain on the bench, theCJPreferred specifically to the testimony as a mitigating factor that reduced
McBrien's punishment.Click here. Court records indicate thatJudge McBrienhas not disclosed the
potentialconflict of interestto opposing attorneys and litigants in subsequent appearances by the
attorneys in cases before the judge.Click hereforSFCNcoverage of conflict issues.
Judge pro temattorneysTerri Newman,CamilleHemmer,Diane WasznickyandDonna
Reedwereinvolved in a proposedscheme to rig a recall electionofcontroversialJudgePeter J.
McBrienin 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the
Year" before the November election.Click herefor theSacramento News and Reviewreport.
Judge pro tem attorney
Robert J. O'Hair testified
as a character witness for
controversial Judge Peter
J. McBrien at the judge's
second CJP disciplinary
proceeding in 2009.Paula
Salinger, an attorney at
O'Hair's firm,Woodruff,
O'Hair Posner &
Salingerwas later granted
a waiver of the
requirements to become
ajudge pro tem. A family
court watchdog asserts
the waiver was payback for
O'Hair's testimony for
McBrien.Click hereto
read our exclusive
investigative report.

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Court records show that Judge Jaime Roman (L) and Judge Matthew Gary
routinely issued demonstrably illegal court orders for the benefit oflocal
attorneyswho also work as part-time judges in family court. Both judges
have been reassigned out of the family courthouse.

In cases where one party is

unrepresented, family court
clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state
court rule formatting requirements. The declarations- on blank paper and without line numbers - make
it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible
evidence. Click here for our report documenting multiple state court rule violations in a motion filed
bySCBA Family Law Section officer and temporary judgePaula Salinger. To view the pro per
responsive declaration objecting to the illegal filing click here, and click here for the pro per points &
authorities.
Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of
Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of

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Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information
included in the mandatory form. Click here for our exclusive report.
Sacramento Family Court temporaryjudgeandfamily law lawyerGary Appelblatt was charged with
13-criminal counts including sexual battery and penetration with a foreign object. The victims were
clients and potential clients of the attorney.The judge pro tem ultimately pleaded no contest to fourof
the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court
administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click
hereto read our report.
Judge pro tem and SCBA Family Law Section attorneyScott Kendall was disbarred from the practice
of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate
the law, failing to perform legal services competently, and failing to keep clients informed, including not
telling a client about a wage garnishment order and then withdrawing from the same case without
notifying the client or obtaining court permission. Court administrators concealed from the public that
Kendall held the Office of Temporary Judge.Click here to view our report.
Judge pro tem attorneys Nancy Perkovich and Jacqueline Estonin 2008 helped Donna Gary - the
wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software
program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by
the Code of Judicial Ethics. Click here for our exclusive report on the controversy.
In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the
only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento
Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal
Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the
newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court
administrators and judges.Click here for our report.

Family court reform

advocates assert that judge
pro tem attorneys obtain
favorable court rulings on
disputed issues at a
statistically improbable
rate. The collusion
between full-time judges
and judge pro tem
attorneys constitutes
unfair, fraudulent, and
unlawful business
practices, all of which are
prohibited under California
unfair competition laws,
including Business and
Professions Code
17200, reform advocates
claim.

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Sacramento Superior Court Judge James Mizetestified as a characterwitness in

support of controversial Judge Peter McBrien when McBrien was facing removal
from the bench by the state Commission on Judicial Performance.

Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in
unnecessary appeals burdening the appellate court system, and other, related litigation that wastes
public funds, exposes taxpayers to civil liability, and squanders scarce court resources.
Watchdogs point out that the court operates what amounts to a two-track system of justice. One for
judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and
"outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to
the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold
standard reference on judge misconduct.Click here for articles about the preferential treatment given
judge pro tem attorneys. Click here for examples of how pro pers are treated.
After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli
wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now
abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete,
scathing account.
The Sacramento County Bar Association Family Law Section is led by an "Executive Committee"
("FLEC") of judge pro tem attorneys composed ofChair Russell Carlson, Vice Chair Elaine Van
Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been
involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in
federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members.
Click here for otherarticles about FLEC.

HERSHER
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PARENTAL

Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that
another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any
provision of the California Rules of Professional Conduct. Family court watchdogs assert that
temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys
but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of
office. To view the applicable Code of Judicial Ethics Canons,Click here. For a Judicial Council
directive about the obligation to address judicial misconduct, a critical self-policing component of the
Code of Judicial Ethics, click here.

(1)
PAULA
SALINGER

(15)

PETER J. McBRIEN

(24)
PHILLIP HERNANDEZ
ALIENATION

(3)
PRESIDING JUDGE
(2)

PRO
PERS
(18)

PROTEST
(9)
PSY
(1)
PUBLIC
RECORDS

For information about the role of temporary judges in

family court,click here.For officialSacramento County
Superior Courtinformation about theTemporary Judge
Program click here.

Using public records law, Sacramento Family Court

News obtained the list of private practice attorneys
who also act as judge pro tems in Sacramento Family
Law Court. Each lawyer on the list below is currently a
temporary judge, or was a temporary judge in 2009,
2010, 2011, 2012 or 2013.SFCN cross-checked each
name on the Sacramento Countyjudge pro tem list
withCalifornia State Bar Data. The first name in each
listing is the name that appears on the Sacramento
County judge pro tem list, the second name, the State
Bar Number (SBN), and business address are derived
from the officialState Bar data for each attorney. The
State Bar data was obtained using thesearch function
at the State Bar website.

(1)

RAOUL

THORBOURNE
(1)

M.

RAPTON(11)

KARRES

RECOGNITION/AWARDS
(3)

REVISIONISM SERIES
(2)

RICHARD SOKOL
(12)

ROBERT HIGHT
(11)

ROBERT
O'HAIR
(8)

ROBERT SAUNDERS

(21)
ROLAND

L. CANDEE
(1)

RON BURGUNDY
(1)
RONALD

ROBIE
(1)
RUSSELL CARLSON

(4)
RUSSELL L. HOM
(1)
RYDER
SALMEN
(2)
S. HINMAN
(3)

SACRAMENTO BEE
(4)

SACRAMENTO
COUNTY
SUPERIOR
COURT
(2)

SACRAMENTO
FAMILY
COURT
(13)
SACRAMENTO
SUPERIOR COURT
(12)

SANCTIONS
(2)
SANTA

CLARA

LAW SCHOOL
(1)
SARAH ANN

STEPHENS
(1)
SATIRE
(11)
SCBA

(22)

SCHWARZENEGGER
(1)
SCOTT
BUCHANAN
(5)
SCOTT
A number of family court whistleblowers have leaked court
recordsindicating that judge pro tem attorneys receive from
judges kickbacks and otherpreferential treatment in exchange
for operating the familycourt settlement conference program.

For-profit, private sector

lawyers who also hold the
Office of Temporary Judge:

KENDALL
(1)
SCSD
(1)
SEATON
CASE

(1)

SELF-HELP

(1)

SETTLEMENT CONFERENCE

(2)
SFCN READERSHIP DATA

(4)
SHARON A. LUERAS

(10)
SHARON HUDDLE
(6)

SO YOU WANT TO GO TO

Sandy

Amara, Sandra Rose Amara, SBN 166933, Law Office of Sandra Amara,1 California

Street,Auburn, CA95603.

Mark

Ambrose, Mark Anthony Ambrose, SBN 141222, Law Offices of Mark A. Ambrose, 8801

LAW

SCHOOL

WAGNER

WHITE

GEVERCER

Street, Ste. 2B Galt, CA 95632.

Beth

Appelsmith, Beth Marie Appelsmith, SBN 124135,1430 Alhambra Blvd. Sacramento CA

95816.

Bunmi Awoniyi, Olubunmi Olaide Awoniyi, SBN 154183, Law Office of Bunmi Awoniyi a
PC,1610 Executive Ct. Sacramento, CA 95864. Awoniyi unethically advertises herself as a temporary judge.
Awoniyi was appointed a Superior Court Judge in December 2012 and holds court in Department 120 of
Sacramento Family Court.

Alexandre C. Barbera, C. Alexandre Barbera, SBN 70071,915 Highland Point Drive, Ste. 250
Roseville, CA 95678.

STEUART

(1)

(2)

BURLINGHAM

Kathleen Amos, Kathleen Swalla Amos, SBN 112395, Attorney at Law & Mediator,206 5th
Gary Appelblatt, Gary Michael Appelblatt, SBN 144158, 3610 American River Drive #112,

(2)

LEAVENWORTH

Folsom Blvd. Ste. 170, Sacramento, CA 95826. Ambrose unethically advertises himself as a temporary judge.

Sacramento, CA 95864. Appelblatt was disbarred by the State Bar on Sept. 24, 2010 afterbeing convicted of
sexual battery against clients. Click here for our exclusive report. Appelblatt is a graduate of McGeorge School of
Law.

(4)

SOCIOECONOMIC BIAS

(5)
STATE AUDITOR
(6)

STATE BAR
(5)
STEPHEN
STEVE
STEVEN

(1)

(1)

STEVEN
STEVEN

SUNDAY
FUNNIES

(15)

SPIELBERG
(1)

SUNSHINE
WEEK
(2)

SUPERIOR COURT
(2)

SUPREME COURT
(3)
TAMI

BOGERT
(1)
TAXPAYERS
(1)
TERRY FRANCKE
(1)

BLIZZARD
(5)

THADD

THADDEUS

STEVENS
(1)
THE RUTTER GROUP

(1)
THOMAS M. CECIL
(4)

THOMAS WOODRUFF
(5)

TIMOTHY ZEFF
(5)
TOMMY
ULF
LEE
JONES

(1)

CARLSSON
(6)
UNITED
NATIONS
(1)
UPDATE
(2)

VANCE W. RAYE
(3)

VEXATIOUS LITIGANT
(2)

VICTORY OUTREACH CHURCH

(1)

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A Sacramento Family Court News investigation indicates that ideology and undisclosed conflicts of interest play a significant role in the
outcome of appeals in the Third District Court of Appeal.

An Exclusive Sacramento Family Court News Investigation

EMPLOYEE MISCONDUCT

(19)
CHARLOTTE KEELEY
(18)

This ongoing investigative project was updated in April, 2015.

PRO PERS
(18)
Sacramento Family Court Newsis conducting an ongoing investigationof published and unpublished 3rd District
Court of Appeal decisions in trial court cases originating from family courts. This page is regularly updated with
our latest news, analysis, and opinion. Our preliminary findings reveal an unsettling link between how an appeal is
decided and the political ideology, work history, and family law bar ties of the court of appeal judges assigned to
the appeal.

Our investigation indicates that the outcome of an appeal is in large part dependent on the luck of the justice draw
and the undisclosed connections between the trial court judge whose order is appealed, the trial and appellate
court attorneys, and the judges assigned to resolve the appeal.

The collusive atmosphere falls hardest on unrepresented or "pro per" appeal parties who can't afford to hire a
local appellate attorney. 3rd District appeal outcome statistical data reveals a virtually perfect record of success for
attorneys in cases where the opposing party is a pro per. Appeals taken by pro per litigants rarely, if ever,
succeed.

In addition, a separateSFCN investigation has uncovered evidence that both trial and appellate court judges,
part-time judges, and court employees deliberately obstruct appeals by indigent, unrepresented parties. Appeal
data from the Third District reveals that most pro per appeals are never decided on the merits and are instead

DOCUMENTS
(17)
JAMES M. MIZE
(17)
DIVORCE CORP
(15)
CARLSSON CASE
(11)
COLOR OF LAW SERIES

(11)
CONFLICT OF INTEREST

(11)
RAPTON-KARRES
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)

dismissed on legal technicalities, which are often caused by the deliberate acts of government employees.

Court whistleblowers assert and have documented that the family law division of Sacramento Superior Court and
the 3rd District Court of Appeal effectively operate as a RICO racketeering enterprise that deprives the public
of the federally protected right to honest government services, and includes predicate acts of mail and wire
fraud. Click here to read our full report on the allegations.

WOODRUFF O'HAIR
POSNER and SALINGER

(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)

The 2014 documentary film Divorce Corp, designated Sacramento County as the most corrupt family court in
the United States. Court watchdogs contend that the scale and scope of the corruption rivals the Kids for Cash
scandal in Luzerne County, Pennsylvania, which also became a documentary film.

NO CONTACT ORDERS
(10)

Third District Court of Appeal cases are assigned to three of ten judges. The background of each appears to be
a critical factor in how an appeal is decided.

CHRISTINA VOLKERS
(8)

SHARON A. LUERAS
(10)

FERRIS CASE
(8)

Friends in Low Places

JESSICA HERNANDEZ
(8)
JULIE SETZER
(7)

For example, 3rd District unpublished opinions

show that Court of Appeal justices who were
elevated to the appellate courtfrom Sacramento
CountySuperior Court will often effectively
cover for judicial errors in appeals from the same
court.

Third District Justices George Nicholson,

Harry E. Hull, Jr.,Ronald B. Robie, and
Presiding Justice Vance W. Rayepreviously
were trial court judges inSacramento County
Superior Court.

YOUTUBE
(7)
3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
3rd District Court of Appeal watchdogs assert that appeal
outcomesare inconsistent, and in large part determined by
the work history,and social or professional connections
ofthe three judges assignedtodecide an appeal.

Each have personal, social, or professional ties to family court judges and attorney members of the Sacramento
County Bar Association Family Law Section.After his retirement in 2011, 3rd District Presiding Justice
Arthur Scotland described the professional and personal relationships he had with attorneys during his career on
the bench.
"[I] enjoy friendships...I go to all the county bar events. I do that for two reasons. One, I think
it's a responsibility of a judge to be active in the community, and the attorneys appreciate it.
But I really like the people. I really like going to these events. I enjoy friendships and that sort
of thing." Click here to view Scotland's statement.

CANTIL-SAKAUYE
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CHRISTINA ARCURI
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CONTEMPT
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THADD BLIZZARD
(5)
FAMILY LAW FACILITATOR

(4)
LUAN CASE
(4)
MIKE NEWDOW
(4)

WE SUPPORT
Sacramento Lawyer, the monthly magazine of the Sacramento County Bar Association each month publishes
accounts of recent social, educational and charitable events sponsored by the association, its 17 specialty law
sections - including the family law section - and its eight local affiliates, including the Asian/Pacific Bar
Association, and Women Lawyers of Sacramento. Most are well attended by a mix of state and federal judges,
court administrators, supervisors and employees, and lawyers.

To get a sense of the collusive atmosphere in Sacramento Family Law Court, we recommend reading our special
Color of Law series of investigative reports, which document the preferential treatment provided by family court
employees and judges to SCBA Family Law Section lawyers at the trial court level. Click here to view the Color
of Law series.Financially disadvantaged, unrepresented litigants who face opposing parties represented by SCBA
attorneys assert that the collusive collegiality taints appeal proceedings in the appellate court.

Pro per advocates contend that under Canon 3E(4)(a) and (c) of the Code of Judicial Ethics, Raye, Robie, Hull
and Nicholson should disqualify themselves from participating in any appeal originating fromSacramento Family
Law Court. Advocates argue that the same conflict of interest principles apply to family court appeals that resulted
in the self-recusal, or removal, of Vance Raye from participating in the 2002 Commission on Judicial
Performance prosecution of family courtJudge Peter McBrien. To view the 2002 Raye recusal andCJP decision
against McBrien, click here.The CJP has disciplined judges for violating the Code of Judicial Ethics rules
requiring judges to disclose conflicts. Click here for examples of CJP conflict of interest disciplinary decisions.

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Family Law Professor Blog
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It is a basic principle of law that state appellate justices and federal judges with personal or professional
relationships with trial court judges connected to an appeal or federal court action should disqualify themselves to
avoid the appearance of partiality. Click here to view a recent order issued by a federal judge disqualifying the
entire bench of the Fresno Division of the US District Court for the Eastern District of Californiadue to personal
and professional relationships with local state court judges.

Above the Law

The conflict disclosure problem infects the Superior Court as well. To the benefit of local family law attorneys who
also hold the office of temporary judge in the same court, Sacramento Family Law Court judges effectively have

LEGAL NEWS &

INFORMATION

The Divorce Artist

institutionalized noncompliance with state conflict of interest disclosure laws.Click here. For an example of a
Sacramento County civil court trial judge who fully complied with conflict laws, click here.Without oversight or
accountability, family court judges routinely - and in violation of state law - ignore the same disclosure
requirements.

History & Origins of the Current Sacramento County

Family Court System
In 1991, as a superior court judge, current3rd District
Justice Vance Raye partneredwith controversial family
court Judge Peter J. McBrien and attorneys from the
Sacramento County Bar Association Family Law
Sectionin establishing the current, dysfunctional Sacramento
Family Courtsystem, according to the sworn testimony of
McBrien at his 2009 judicial misconduct trial before the
Commission on Judicial Performance.

Behind closed doors and under oath, the judge provided

explicit details about the 1991 origins of the present-day
family court structure. The public court system was built to the
specifications of private-sector attorneys from the SCBA
Family Law Section Family Law Executive Committee,
according to McBrien's testimony.To view McBrien's detailed
description of the collusive public-private collaboration, posted
online exclusively by SFCN, click here. To view the same,
current day collusion, click here.

The 1991 restructuring plan began with a road trip suggested

by the family law bar:
"[T]he family law bar, and it was a fairly strong bar
Tani Cantil Sakauye worked with Peter J. McBrien
here in Sacramento, initiated the concept of a trip

in Sacramento County Superior Court from 1997-2005.

to Orange County and San Diego County to pick up
some ideas about how their courts were structured.
And myself and Judge Ridgeway and two family law attorneys made that trip and came back
with various ideas of how to restructure the system," McBrien told the CJP.Click hereto view.
But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who
restructured the family court system in 1991.As reported by the Daily Journal legal newspaper
McBriendishonestly impliedthat the system was conceived and implemented by judges alone after they made a
county-paid "statewide tour" of family law courts. The judge omitted from the story the fact that the trip was initiated
by the family law bar, and included two private-sector family law attorneys who took the county-paid trip with
McBrien and the late Judge William Ridgeway.
"[M]cBrien and a few other Sacramento judges went on a statewide tour of family law courts.
At the time, there were continual postponements of trials. 'This is how we came up with the
system today,' McBrien said. 'It was the best trip Sacramento County ever paid for.' The
judges changed the local system so that family law judges presided over both law and motion
matters and trials..."the Daily Journal reported. Click here to view.
Under oath, McBrien admitted that the private-sector, for-profit family law bar dictated the public court facility
restructuring plan - conceived to serve the needs and objectives of SCBA Family Law Section member attorneys
- which then essentially was rubber-stamped by the bench.
"[T]he Bar culled through the various ideas and options, came up with a plan, presented it to
the family law bench. We made what adjustments we felt were appropriate and then presented
the whole of it to the full bench," and the plan was approved. Click here to view.
In essence, McBrien disclosed that the current public court system was set up by and for local attorneys with little, if
any, consideration of theneeds of the 70 percent of court users unable to afford counsel. The system also has
shown it is designed to repel carpetbagger, outsider attorneys, like Stephen R. Gianelli of San Francisco, and
Sharon Huddle of Roseville. Click here and here.
"[T]his is a 'juice court' in which counsel outside Sacramento have little chance of prevailing...
[the] court has now abandoned even a pretense of being fair to out-of-town counsel," Gianelli
said.
According to the Commission on Judicial Performance - the state agency responsible for oversight and

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Local & National Family CourtFamily Law Sites & Blogs (may
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Directory
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JDSupra Law News

accountability of California judges - the structure is known as a "two-track system of justice."
"In this case, we again confront the vice inherent in a two-track system of justice, where
favored treatment is afforded friends and other favored few, and which is easily recognized as
'corruption at the core of our system of impartial equal justice, and...intolerable," the CJP said
in a 2005 judicial discipline decision involving a Santa Clara County judge.To view a list of
similar CJP decisions, click here.
According to the gold standard reference on judicial ethics, the California Judicial Conduct Handbook [pdf],
published by the California Judges Association, providing preferential treatment to local, connected attorneys
also is known as "hometowning," and is prohibited by the Code of Judicial Ethics.To view this section of the
Handbook, click here.

Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com
Moving Past Divorce
News and Views Riverside
Superior Court
Weightier Matter

Keeping Neutral Judges Out-of-the-Loop

CONTRIBUTORS

One objective of the revamped system was to

keep all family court proceedings in-house: within
the isolated family relations courthouse. Prior to
the change, trials were conducted at the
downtown, main courthouse and before judges
more likely to have a neutral perspective on a
given case, and less likely to have ties to the
family law bar.

Cathy Cohen
ST Thomas
PR Brown
PelicanBriefed
FCAC News

"The judges changed the local system

so that family law judges presided over
both law and motion matters and trials,
which used to be sent to a master
calendar department and competed
with criminal trials for scheduling," the
Daily Journal reported.
Family court watchdogs and whistleblowers
allege that under the system set up by Raye and
McBrien, the local family law bar - through the
Family Law Executive Committee or FLEC now controls for the financial gain of members
virtually all aspects of court operations, including
local court rules.A cartel of local family law
attorneys receive preferential treatment from
family court judges and appellate court
justicesbecause the lawyers are members of the
Sacramento Bar Association Family Law
Section, hold the Office of Temporary Judge,
and run the family court settlement conference
program, court reform advocates charge.

RoadDog

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Justice Ronald Robie performs in the "Judge's Choir" for the

Sacramento County Bar Association Family Law Section

Holiday Luncheon.

Court watchdogs have catalogued and documented examples of judge pro tem attorney favoritism, and
flagrantbias against unrepresented litigants and "outsider" attorneys. Click here for a list of watchdog claims.
Published and unpublished 3rd District opinions indicate that Court of Appeal justices without direct ties to the
same superior court are more likely to follow the law, and less likely to whitewash trial court mistakes.

Carlsson Case Exposes 3rd District Ideology &

Undisclosed Conflict of Interest Issues

PR Brown
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One of these things is not like the others, One of these things just doesn't belong,
Can you tell which thing is not like the others, By the time I finish my song?
Third District Court of Appeal Justices Ronald B. Robie, Harry E. Hull Jr., George Nicholson and Cole Blease.
Only Blease (R) has no past connection to Sacramento County Superior Court.

One of the few Third District opinions to critically, and scathingly scrutinize the problematic Sacramento Family
Court system was the 2008 decisionIn re Marriage of Carlsson, authored by Associate JusticesM. Kathleen
Butz, Cole Blease and Rick Sims.The opinion criticized explicitly the conduct of controversial Sacramento
County Family Court Judge Peter J. McBrien. None of the three 3rd District justices who decided the appeal
had ever worked as a judge in Sacramento County.

A fourth outsider jurist,Sixth District Court of Appeal Presiding Justice Conrad L. Rushing subsequently
characterized McBrien's conduct in the Carlsson case as a "judicial reign of terror."In addition to ordering a full
reversal and new trial, the 3rd Districtdecision subjected McBriento a second disciplinary action by the state
Commission on Judicial Performance.
The judge's first go-round with the CJPstemmed from McBrien's 2000 arrest for felony vandalism under Penal
Code 594 in connection with the destruction of public-owned trees - valued at more than $20,000 - at the Effie
Yeaw Nature Center in Ancil Hoffman Park, Carmichael, California. McBrien had the trees cut to improve the
view from his home on a bluff above the park. Click here for the 2001Sacramento News and Review coverage
of the case.Click here to view the original summons charging McBrien with felony vandalism. Click here to view
the report of Sacramento County District Attorney's Office Criminal Investigator Craig W. Tourte detailing the
complete investigation of McBrien's crime, posted online for the first time exclusively by SFCN.

Less than 48 hours after the judge was charged with the felony, McBrien negotiated a plea bargain, pleading no
contest to a misdemeanor violation of Penal Code 384a,paying restitution of $20,000, and a fine of $500.The
improved view increased thevalue of the judge's home by at least $100,000, according to a local real estate
agent, and the sweetheart deal outraged the Ancil Hoffman Park personnel who originally discovered the
butchered trees and conducted the initial investigation. McBrien's subsequent 2009 sworn testimony before the
CJP recounting his criminal case starkly contradicted Tourte's report and the truth about his criminal conviction.

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In the documentary film Divorce Corp, Ulf Carlsson describes egregious misconduct by Sacramento Family Law Court Judge Peter McBrien. Using
misleading sworn testimony about McBrien's reversal rate in the appellate court, 3rd District Court of Appeal Presiding Justice Arthur G. Scotland
effectively saved McBrien from being removed from the bench by the Commission on Judicial Performance.

Presiding Justice Arthur G. Scotland Intervenes in

McBrien CJP Prosecution
On his second trip to the CJP woodshed, Judge
PeterMcBrien needed all the help he could get to
save his job, and then-Third District Court of
Appeal Presiding Justice Arthur Scotland
delivered in a big way.

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Among other slight-of-hand tricks, Scotland devised

a clever artifice to make it appear to the CJP judges
assigned to decide McBrien's fate that the trial court
judge had a much lower than average rate of
reversal in the court of appeal.

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Scotland's 2009 testimony on McBrien's behalf

also was controversial and may itself have violated
the Code of Judicial Ethics. A critical self-policing
component of the Code,Canon 3D(1) requires
judges who have reliable information that another
judge has violated any provision of the Code take
"appropriate corrective action, which may include
reporting the violation to the appropriate authority."
Click here to view Canon 3D(1).Click here to view
a Judicial Council directive about the duty to take
corrective action, and the types of corrective action
required.

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Tani Cantil-Sakauye, Arthur Scotland, George Nicholson and

Peter McBrien all workedfor former California Attorney General

and Governor George Deukmejian.All were appointed to the

Sacramento County bench by Deukmejian.

While under oath before the CJP, Scotland verified

that he was aware ofMcBrien's misconduct in the
Carlsson case.Scotland essentially defied the selfpolicing Canon and, in effect,the published Carlsson opinion authored by his co-workers Butz, Blease and Sims,
and instead testified in support of McBrien at the CJP. In it's final decision allowing McBrien to remain on the
bench, the CJP specifically cited Scotland's testimony as a mitigating factor that reducedMcBrien's punishment.
Click here.An examination of Scotland's career in government - funded by the taxpayers of California - provides
insight into the tactics, motives, and questionable ethics behind his unusual involvement in the McBrien matter.
By his own admission, Scotland's career in the Judicial Branch of government was the result of connections and
preferential treatment. The former justice candidly recited his life history in a nearly three-hour interview for the
CaliforniaAppellate Court Legacy Project in 2011. Like other gratuitous "tough-on-crime"conservative
ideologues from a law enforcement background who rose to power in the 1980's, Scotland apparently lived the
cliche of beingborn on third base and going through life thinking he hit a triple. His interest in law developed
when he worked as an undercover narcotics agent for the state Department of Justice.
"[I] bluffed my way through the interview, and I got hired as a narcotics agent in 1969...I was
an undercover narcotics agent. I've bought a lot of dope in my life...all lawfully, but I've
bought a lot of dope," Scotland said. "And I testified in court. And that's what got me
fascinated in the legal process...and it got me involved in the law." Click here to view.
Having worked with prosecutors as an undercover cop, Scotland
decided he wanted to be one. But due to his lackluster
performance as a college student, law school presented a
problem, albeit a problem easily solved through a family
connection.
"[I] thought, I want to be a prosecutor. I'm going to go
to law school; I want to be a prosecutor. So I applied
in 1971. I applied to only one school: University of the

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Pacific, McGeorge School of Law...[M]y grades weren't

all that great. I did very well on the LSAT test: I did
excellent on that. But I didn't figure I could get
accepted anywhere else, 'cause I really hadn't been a
serious student. So I went to University of Pacific,
McGeorge School of Law," Scotland explained.
"I didn't know [McGeorge Dean Gordon D.Schaber],
but my dad did. And my dad had done some life
insurance, estate planning work for McGeorge. And
again, my dad was an influence on my life because he
Arthur Scotland used a family connection to get into
knew people and he set me up with jobs. And I'm sure

a law schoolwith liberal admission standards.

that one of the reasons I got selected for McGeorge
School of Law is my dad's relationship with the dean."Click here to view.
After graduation, but before he was licensed to practice law, Scotland nonetheless practiced law while employed as
a deputy district attorney for Sacramento County. In the outside world, the unauthorized practice of law is a
crime. But in Scotland's protective law enforcement bubble, "laws" are only enforced against drug addicts and the
unwashed masses. As Scotland explained in his own words, laws are actually only "rules" when a sworn peace
officer breaks one.
"Actually, before I even got sworn in in the bar, I was assigned out to juvenile hall and we
prosecuted...I prosecuted cases without any supervision - you know, against...really against
the rules...we were trying cases without any supervision." Click here.
In McGregor v. State Bar, the seminal case on the unauthorized practice of law, the California Supreme Court
explained why a nonlicensed person is prohibited from exercising the special powers and privileges of a lawyer.
"The right to practice law not only presupposes in its possessor integrity, legal standing and
attainment, but also the exercise of a special privilege, highly personal and partaking of the
nature of a public trust. It is manifest that the powers and privileges derived from it may not
with propriety be delegated to or exercised by a nonlicensed person." Click here.
25 years after he obtained his license to practice law, Justice Arthur G. Scotlandexploited the implied integrity of
his court of appeal office and exercised his special privilege in a way that to many Sacramento Family Court
litigants was a manifest violation of the public trust.

The Artifice

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LAW

To help his old friend Pete McBrien keep his job, Justice Arthur G. Scotland concocted a clever plan intended to deceive the judges
deciding McBrien's punishment at the Commission on Judicial Performance.

In his Commission on Judicial Performance sworn character witness testimony for his old friend and law
enforcement co-workerPeter McBrien, Arthur Scotland drew on his training and experience in deceit from his
days as a narc."[Y]ou have to be an actor, you have to play the game," Scotland explained in the 2011 interview.
In front of the three CJP judges responsible for hearing evidence and deciding McBrien's fate, Scotland concocted
a clever, deceptive plan - an artifice in legal terminology - and convincingly delivered an award worthy actor's

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SUNDAY
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performance.

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While testifying for McBrien,Scotland also revealed that his appearance on the troubled judge'sbehalf effectively
was voluntary. Before subpoenaing Scotland to testify, McBrien's defense attorney confirmed that Scotland would
not object to the subpoena. Click here. Judicial ethics Canon 2B restricts use of the prestige of judicial office to
advance the personal interests of the judge or others. Canon 2B(2)(a) permits a judge to testify as a character
witness only when subpoenaed.

The transcript of Scotland's testimony also showed that -to prepare his CJP testimony - the presiding justice of the
3rd District affirmatively and voluntarily took theinitiative (presumably on his own time) to research 3rd District
family court appeals where McBrien was the trial court judge. His objective was to show the CJP that McBrien had
a low reversal rate in the appellate court.
"I also, by the way -- when you called me to ask if I would object to being Subpoenaed as a
witness, and I said no, I did research. I looked up -- I knew what this was all about, so I
researched the number of appeals from cases from Judge McBrien's court. And so I -- and I
looked -- I read all the opinions in which he was reversed in full or in part...
I've known Judge McBrien for 32 years. I got to know, then, Deputy Attorney General Pete
McBrien. When I left the Sacramento County District Attorney's Office and went to work for
the California Attorney General's Office, he was already a Deputy Attorney General there. So I
got to know him there, mainly professionally. Socially to a relatively minor extent. We had -we had two co-ed softball teams. He played on one; I played on another. Of course, we would
attend office functions together. His -- one of his very best friends was my supervisor in the
Attorney General's Office. So, on occasion -- not frequently, but on occasion we would attend
social events with others from the office....
[McBrien had] seven reversals in whole or in part, out of 110 appeals, which is about 6%,
which actually is a remarkably good reversal rate. Because our average reversal rate in civil
cases is 20 to 25 percent." Scotland testified at pages 549-553 of the reporter's transcript. Click
here.
Scotland's claim that McBrien had a
"remarkably good reversal rate" was,
at best, a half-truth. Under the legal
and ethical standards applicable to
lawyers and judges, a half-truth is the
same as a "false statement of fact" or
what the general public refers to as a
lie. Click here.

What Scotland withheld from the CJP

is the fact that the vast majority of
appeals from family court are never
decided on the merits. Unlike appeals
from civil cases, most family court
appeals are taken by unrepresented
parties who fail to navigate the
complexities of appellate procedure
and never make it past the preliminary
stages of an appeal. In other words,
Scotland rigged his statistics. While
McBrien may have had seven
reversals out of 110 appeals filed, only
a small portion of the 110 appeals filed
were actually decided on the merits.

Arthur Scotland poses with the fruits of a drug bust from his days as an

undercover cop. Trained to lie and deceive in order to make undercover

drug buys, Scotland acknowledged his skill in the role.

"You have to be an actor, you have to play the game," he said in 2011.

Scotland then made a disingenuous, self-serving apples-to-oranges comparison between the reversal rate in civil
case appeals - where both sides are usually represented by an attorney, or team of attorneys, and appeals are
decided on the merits - with the reversal rate in family court cases, where neither qualifier is true.SFCNcurrently is
conducting an audit of 3rd District family court appeals, and will have more on this subject in the near future.

Blame the Victim

In a final act of both flagrant cronyism to his friend and former Department of Justice co-workerPete McBrien,
and disrespect to the work of his fellow 3rd District Court of AppealJusticesKathleen Butz, Cole Blease and
Rick Sims whose published opinion in the Carlsson caseresulted in McBrien's prosecution by the CJP, Scotland

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had the balls to suggest that disciplining McBrien for his conduct in Carlsson would be a "miscarriage of justice,"
that would allow "incompetent attorneys to run the court instead of competent judges."
"And you haven't asked me this question, but if [McBrien] were, for some reason, to be found
to have violated the canons of judicial ethics, or whatever, I frankly -- I know about these
cases; I know about the Carlsson case. I think it would be a miscarriage of justice. I think it
would send the wrong signal to judges and practitioners that you don't allow -- that you would
be allowing incompetent attorneys to run the court instead of competent judges," Scotland
testified at the CJP.
Like Scotland, 6th District Court of Appeal Presiding Justice Conrad Rushingknew well the Carlsson case,
which he said "developed a certain notoriety."Unlike Scotland, Rushing wasn't an old friend and coworker of
McBrien who would disingenuously suggest the blame for McBrien's "reign of terror" lay with an incompetent
attorney. Scotland's colleagues at the 3rd District,Butz, Blease and Sims reversed and remanded the Carlsson
case for retrial based on extremely rare, reversible per se, egregiousstructural and constitutional error by Judge
McBrien.Aftercarefully scrutinizing the trial court record, the panel made no mention of attorney "incompetence" in
their published opinion.
However, Scotland's incompetence assertion to the CJP
did, coincidentally, perfectly dovetail with
thecarefullycrafted defense McBrien's legal team
presented during three days of CJP testimony to the
three-judge CJP panel assigned to decide McBrien's
fate.

A key component of McBrien's defense relied on

suspiciously consistent witness testimony portraying Ulf
Carlsson's attorneySharon Huddle as incompetent and
effectively provoking McBrien's multiple violations of the
Code of Judicial Ethics. CJP prosecutor Andrew Blum
mocked the risible defense in a confidential court
reporter transcript leaked to SFCN. Click here to view
the transcript.
Ironically, the time-tested, repugnant but effectiveblame
the victim strategy, was coldly aided and abetted by
Scotland, a justice who rose to power with the backing
and endorsements of victims rights groups
includingCrime Victims United of California, and the
Doris Tate Crime Victims Bureau. To help McBrien's
defense team, Scotland dusted off thedog-eared
playbook of exploiting victims, one way or another, to
advance his personal agenda.

Contrary to the explicit findings by his colleagues at the 3rd District

Court of Appeal, in his deceptive CJP testimony JusticeArthur
Scotland blamed attorney Sharon Huddlefor the egregious
misconduct of his old friend, Judge Peter McBrien.

Scotland's irony-infusedblame the victim testimony,

misleading appeal reversal data, and theweight of character witness testimonyfrom a sitting Court of Appeal
presiding justice, along with similar character testimony from Sacramento CountySuperior Court Judges James
Mize, Thomas Cecil (currentlyOf Counsel at the family, family law firm Cecil & Cianci) , Michael Garcia and
Robert Hight, and Sacramento County Bar Association Family Law Section attorneys and judge pro
temsCamille Hemmer, Jerry Guthrie, Robert O'Hair and Russell Carlson all tipped the scale just enough to
enable McBrien to keep his job. Click here to view the complete, 12-page CJP summary of the McBrien character
witness testimony.

Despite the parade of former law enforcement co-workers, friends, and family court judge pro tem
croniesMcBrien marshaled on his behalf, two of the voting CJP members saw through the ruse and dissented
from the decision to let the judge remain on the bench, stating they would have removed McBrien from
office.Click here.When he referred to McBrien's conduct in the Carlsson case as a "judicial reign of terror," 6th
District Justice Rushingalso noted that "two of the nine participating members [voted] to remove him from
the bench." Click here.
The Carlsson case is prominently featured in Divorce Corp, a documentary film that "exposes the corrupt and
collusive industry of family law in the United States." The production team for the film conducted a nationwide
search for the most egregious examples of family court corruption and collusion, and four Sacramento County
cases are included in the movie. Narrated by Dr. Drew Pinsky,Divorce Corp opened in theaters in major U.S.
cities on January 9, 2014. Following the theatrical run, the documentary will be released on DVD, RedBox, Netflix,
broadcast and cable TV. Click here for our continuing coverage of Divorce Corp.To view trailers for the movie on
YouTube, click here.

Rehabilitation FAIL
The near-career death experience apparently has had no discernible corrective effect on the ethically-challenged
judge. In subsequent proceedings in his courtroom involving the judge pro tem attorneys (and lawyers at the
same firms as the judge pro tems) whose CJP testimony effectively saved his $170,00 per year job,McBrien
reportedly has never disclosed to opposing parties and attorneys the potential conflict of interest as required by
Canon 3E(2) of the Code of Judicial Ethics. The failure to disclose the potential conflict is a violation of the canon
and other state laws, according to the CJP, Judicial Council, and California Judges Association. For the
exclusive SFCN report on conflict of interest law, click here.

Justice George Nicholson & the Law Enforcement

BlueCode of Silence
In addition, unpublished Third District Court of
Appealdecisions indicate that justices who come
from a law enforcement background appear to take
to the bench with them the "Blue Code of Silence"
culture often found in law enforcement agencies.
3rd District Associate Justice George Nicholson
worked as a prosecuting attorney for more than
15 years before being appointed to the bench in
Sacramento County. The first time Governor
George Deukmejian submitted Nicolson's name to
the bar for review as a judge in 1983, he was rated
as "not qualified," according to the Sacramento
Bee.
"George Nicholson, Republican candidate
for attorney general in 1982, has been
pursuing all manner of public legal
positions: U.S. District Court judge,
California Superior Court judge, U.S. Attorney, public defender in Riverside County. The other
day, when Gov. George Deukmejian appointed him a Sacramento Municipal Court judge, he
finally got one. It's an appointment that ought to cause serious concern both within the State
Bar and in the community. When Deukmejian submitted Nicholson's name to the bar for
review on a possible appointment to the Superior Court in 1983, he was rated 'not qualified.'
The bar now ranks him 'qualified', the lowest acceptable rating of three the bar can give.

Third District Court of Appeal Associate Justice George Nicholson

rode to the benchon a "law and order" agenda.

No one can be certain precisely why Nicholson received such low ratings, but there is enough
in his public record to raise serious questions about his temperament and judgment. In 1979,
he left a job as director of the District Attorneys Association after an audit showed that the
organization's finances had been badly mismanaged and that it was on the verge of
bankruptcy. Later, as a senior assistant attorney general, he was twice admonished by
superiors for promoting a ballot measure in ways that could be mistaken as an official state
Justice Department endorsement of the measure. More recently, a federally funded $4 million
'National School Safety Center' affiliated with Pepperdine University that he directed was
embroiled in an extended controversy during which 18 of 30 staff members either resigned or
were fired.
The U.S. General Accounting Office, which conducted an audit into the management of the
Pepperdine program and into how the federal money was being spent, cleared the center of
fiscal irregularities, attributing the problems to Nicholson's 'combative' personality and
management style. But because of those problems, Pepperdine named a new executive
director, who, the auditors said, restored stability to the management of the program 'while
retaining Nicholson's creative talents,'" the Sacramento Bee said in 1987. Click here.
Nicholson subsequently was elected to both Sacramento County Superior Court and the 3rd District Court of
Appeal with backing from law enforcement, Crime Victims United and other Astroturf "victims rights" and "law
and order" groups. Crime Victims United is funded by - and acts essentially as asubsidiaryof - the California
Correctional Peace Officers Association, the controversial prison guard union.
A principal architect of Proposition 8 the "The Crime Victims' Bill of Rights", after a failed run as the GOP
candidate for attorney general Nicholson rode an anti-Rose Bird, tough-on-crime platform to the bench. Over
several decades, Associate Justice Nicholson played a significant role in giving the United States one of the
highest per capita rates of incarceration in the world. Thanks to Nicholson, the prison guard union, and
Astroturf "victims rights" groups bankrolled by the union, California now spends a significantly larger portion
of the state budget on corrections than on higher education.

Role of Political Ideology

In 1985, Nicholson was demoted from his position as
director of the federally financed National School Safety
Center in Sacramento. The center was administered by
Pepperdine University at Malibu, and established with a
$3.8 million Justice Department grant awarded without
competitive bidding.

Under Nicholson's leadership, 20 of the original 30 staff

members who set up the Center resigned or were
dismissed. The Associated Press reported that that the
debacle was rooted in ideological conflicts between
Nicholson and staff whom Nicholson perceived as too
liberal. According to the AP coverage:
"Several [staffers] described Nicholson as a
political conservative who mistrusted his
mostly liberal staff members, argued with them
unceasingly about the direction of projects, and
accused them of disloyalty when they
questioned his ideas.
'When it became obvious to him he attracted a
number of us with a different political
philosophy, we were not permitted to do our
work,' said Shirley Ruge, a former principal of
schools for delinquent children and one of
those dismissed. 'We were considered
troublemakers and he wanted to shut us up.'"
Nicholson and former 3rd District Presiding Justice
Arthur Scotland have been close friends and colleagues
for more than 30 years. For the California Appellate
Court Legacy ProjectNicholson conducted an almost
three-hour interview with Scotland on December 8, 2011.
The transcript of the interaction reads like a meeting of the
Nicholson-Scotland mutual admiration society. Nicholson
opened the interview detailing the joint work history of the
BFFs.
3rd District Court of Appeal watchdogs assert that
Justice George Nicholson is ethically-challenged,
"George Nicholson: We are here with retired
and not particularly qualified to speak on the subject.
Presiding Justice Arthur G. Scotland, who
served on the Court of Appeal, Third Appellate
District, for more than 20 years, from 1989 to 2011, and that...the last dozen of which he was
the Administrative Presiding Justice. I'm George Nicholson, Justice of the Court of Appeal,
Third Appellate District, and I had the pleasure of serving with Presiding Justice Scotland for
20 years on this court. Before that, we served together as trial judges on the Sacramento
Superior Court, and even before that we served together in the Governor's Office during the
Deukmejian administration and in the California Department of Justice. This has been a long
time coming, Scotty, hasn't it?Arthur Scotland: Nick, it has, and it's a delight for me to have you
interview me for this project."

Click here to view the full interview transcript.

"Judgment Roll" Standard of Review Hits Hardest

Indigent and Low-Income Litigants
In addition, the Third District Court of Appealin Sacramento applies a unique and previously rarely used
"judgment roll" standard of review that in virtually every case where applied results in affirmance of trial court
rulings. Appeals brought by self-represented indigent and low-income litigants make up the vast majority of appeals
where the 3rd District applies the judgment roll standard of review. Although the appellate court has authored
dozens of decisions invoking the draconian standard against family court litigants, it has managed to keep the
assembly line, boilerplate process under the radar. The court has not published a single judgment roll appeal
originating from family court. Click here to see a list of unpublished 3rd District opinions archived by Google
Scholar. The judgment roll summary affirmance process helps the court maintain its title as the most
efficientCourt of Appeal in the state. Equal protection of the law is implicated because other appellate court
districts do not apply the standard nearly as often as the Third District. Equal application of the law is a

foundational attribute of American Democracy.

Justices of the Third District Court of Appeal in Sacramento:

Vance W. Raye, Administrative Presiding Justice.
Cole Blease
Ronald Robie
William Murray Jr.
George Nicholson
Kathleen Butz
Elena Duarte
Harry Hull Jr.
Louis Mauro
Andrea Lynn Hoch
For additional Sacramento Family Court News reporting on the Court of Appeal for the Third Appellate
District, click here.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter.

Chief Justice Tani Cantil-Sakauye, Justice Goodwin Liu, Justice Marvin R. Baxter, Justice Ming W. Chin, Justice Kathryn M. Werdegar,
Justice Joyce L. Kennard, and Justice Carol A. Corrigan of the Supreme Court are responsible for oversight and accountability of the 3rd
District Court of Appeal, and the other appellate courts in the state.

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