California Family Law Judge Punished for Remarks Made on Bench
Who judges the judges? In California, that’s a complicated question. If you think your family law judge made a mistake that hurt your case, you may appeal to the Court of Appeal. If you think that the judge acted inappropriately, based on words, conduct, or demeanor, the remedy is the Commission on Judicial Performance.
Most California judges are aware that regardless of what they decide, they must treat parties, witnesses, and lawyers courteously. Arguably, in family law, this is more difficult, because judges hear lots of cases and the acrimony can be much worse than in other cases.
But that did not excuse a Sacramento County Superior Court judge who received the punishment of “public admonishment” based on his handling of a family law case in 2017 and 2018. According to a 23-page decision dated Thursday, May 14, 2020, The Hon. Matthew J. Gary committed misconduct in a child custody case named Marriage of Battilana. It is not practical to go over everything that Judge Gary said, but according to the court reporter’s transcript, even a small snippet is apt to leave you shaking your head.
On July 31, 2017, the judge tried to use a pun based on the name of the case, by saying “[i]t’s a battle. Your name is appropriate. Pretty close”.
The judge then rambled on about how the parties’ aggressive litigation was going to hurt their daughter by stating, “[a]nd, more important, how bad do you want to ruin your child?”.
She. She’s going to get married and then she’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.
. . .
If you guys were really interested in your child, the solutions are many. And the one solution you keep coming back to, that is not the solution, is me. I’m the perpetuation of the problem.
Grow up, figure it out, take matters into your own hands, come up with a reasonable solution, or you get what you get.
. . .
I’m picking sides right now. I know where the problems lie; but I’ll wait to see how it all plays out.
The hearing continued to the next day, August 1, 2017, at which point Judge addressed the mother’s attorney by saying, Mr. Sagaria, you’re about to come out of your underwear there. What do you need?”
Later in the August 1, hearing, Judge Gary stated:
We can look at prior transcripts where I’ve gone off on you guys about how crazy this is, how much fees have been churned, how far off track we are on all of this; how we’ve made such a huge, colossal, nuclear meltdown over all of this.
You’ve got a two-year marriage, a two-year old child, nobody has any property, nobody has any income; and we’re exceeding $100,000 in attorney’s fees, and $30,000 for –or strike that– $11,000 for a 3111 eval, and we’re off to trial, and we haven’t even done our disclosures, and we’re nowhere even near a divorce on a two-year-old marriage, with a two-year-old child. Way to go. Way to go. I’m done.
Go off to trial, burn it all up. Good luck.
And good luck to [the child], because it ain’t going to turn out well for her. (Emphasis added.)
This is unbelievable.
The couple were back before the judge in January, some five months later.
In the January matter, which actually took place over several days, a retired licensed clinical social worker with the name of Terry Nichols testified about having heard the child say her father was going to die but that a child that age does not understand death.
The judge himself asked a series of questions, as judges can do, particularly in hearings where there are no juries. After Mr. Nichols said that “a two or three-year-old doesn’t understand the permanence of death”, Judge Gary engaged in argumentative and arguably irrelevant questioning of the witness as follows:
THE COURT: Well, sure, excepting that in religion, you take Western culture religion, almost all religions –what is the purpose of the religion?
WITNESS: I’m just saying developmentally. I have nothing to say about the religious part, just developmentally where a child is at that age.
THE COURT: Okay. Without bickering with me, isn’t it one of the purposes of religion for adults [sic] everlasting life so that you don’t have to face death? Don’t we all have perceptions of death?.
The father’s attorney then jumped in, objecting to the judge’s questions, which attorneys can do. The attorney, Rick Cohen, stated “[o]bjection; relevance, Your Honor; argumentative, Your Honor”.
The judge responded:
Overruled. Overruled. It’s not intended to be argumentative at all. The point is, and the two parents should understand this, and since one of the parents is pointing the finger at the other parent, and I’m looking for evidence, Mr. Cohen, again, mountains made of molehills.
Is it unhealthy for a child to face a death issue – and this is not a question for the witness. The record will reflect I’m talking to the parties. And the answer to that question is obviously no, it’s not unhealthy. In fact, it’s healthy for a person, at least in this trier of fact’s opinion since I’m having to rule on the best interest of your child. Death is part of life. In fact, it’s one of the certainties of life.
And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults who struggle with the permanence of death. And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.
The Christian religion – I know dad goes to church, or at least I’ve heard testimony. The Christian religion, you will have everlasting life, John 3:16. If you go through that, what is the purpose for that for adults? This is all commentary on the side. It’s so that you don’t have to face the permanence of death.
Well, the truth of the matter is we don’t know. Some of us have strong opinions one way or the other on that. Wars have been fought over that, are continually fought over religion. My concern is not as much the statement having been made unless there is solid proof that one of you is running around saying to the child your daddy’s going to die soon. Your mommy is going to die soon. If that’s happening, that is way, way out of bounds.
But you should both understand that children pick up on things and say things that sometimes just totally come out of the blue. It could come from a Disney movie. It could come from something from a book. It could come from anywhere. My bigger concern is not the child’s affect, whether she said it and the fact that she said it, that was easily addressed.
Rather than lawyering up and litigating the issue – let me say that again. Rather than lawyering up and litigating the issue, you might want to sit down with your daughter, put her on your lap and say, sweetheart, I’m not going to die any time soon. I love you. I’m going to be around, but death is part of life. We have pets that die. We have flowers that die.
Mr. Cohen, are you listening? What I want the parties to do i[s] in these situations, rather than blow this up and run to court and point fingers, the answer to this question, the answer to this issue was [to communicate].
As if this rambling response to an objection was not enough, Judge Gary added to the strange record when the case was next heard on June 1, 2018. At this point, an associate of attorney Cohen, Kayleigh Birks, was present on behalf of the father. Judge Gary told attorney Birks that “I really enjoy you” but said as to her boss, “[e]very turn I have asked for, and at virtually every turn he has burned me every time he can. It’s not appreciated. It’s not professional”.
The last hearing referenced by the Commission was on December 7, 2018. It appears that the referral to the Commission on Judicial Performance was made some time after that date. It is not clear who made the complaint. Sadly, between the hearings in June and December, 2018, the mother’s attorney, Mr. Sagaria, passed away.
In its decision this past week, the Commission found Judge Gary was guilty of showing “the appearance of prejudgment and embroilment in violation of cannons 2A and 3B(5)” of the Cannons of Judicial Conduct. It also found that the judge’s comments “exhibited embroilment and the appearance of bias in violation of canons 2A and 3B(5)”. Other behavior was found to be undignified and discourteous and indicative of a failure to promote public confidence in the integrity and impartiality of the judiciary. Finally, the Commission found that Judge Gary’s misconduct was significantly aggravated by the judge’s prior discipline that involved his receipt in 2014 of an advisory letter for misconduct in two additional family law matters.
Perhaps the most important part of the decision came towards the end when the Commission acknowledged
Family law matters can be particularly fraught with emotion. These situations are when a calm and steady hand, a respectful demeanor, and the appearance of neutrality are especially needed. A judge may convey to family law litigants the judge’s concerns about the detrimental effects that high-conflict disputes may have on children, but may not do so by telling parents, in harsh terms, that the judge knows how their children will turn out.
Judges may also express their concerns about counsel’s conduct, but may not do so in a disparaging manner, or in a manner that is likely to interfere with the attorney-client relationship. Judges may also question witnesses, but must comply with the canons’ mandates of patience, dignity, and courtesy when doing so.
The decision to publicly admonish the judge was reached by nine people – one Court of Appeal justice, two trial court judges, two lawyers, and four members of the general public, one of whom is either a physician or holds some other type of doctorate. The author of the opinion was one of the two trial judges, the Hon. Michael B. Harper, who is from Trinity County.
The decision to impose the punishment of public admonishment was reached in a stipulation between Judge Gary and the Commission’s trial counsel. The stipulation was then approved by the Commission earlier this month, pursuant to stipulated facts and legal conclusions discussed here.
Judge Gary was appointed to the bench in 2007 by Gov. Arnold Schwarzenegger, after serving five years as a court commissioner.
The complete decision in the Gary case is located here.
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