Today we received some interesting feedback on our article regarding San Diego’s abusive reckless drunk driver Judge Lisa Schall  from a reader who has experienced what it’s like to appear in front of her. This reader has a lot of experience in courts in multiple states and believes that Schall may be the worst judge the reader has encountered. The reader believes we’ve given Schall and other bad judges too many outs and means to scapegoat others (such as the legislature) for their bad decisions and haven’t pointed out enough effective ways for the public to fight these bad judges. In my view these comments are pretty much on the mark and open up further points for discussion, so I’d like to share them with our other readers. Also, at the end of this posting are two poll questions on which I’d appreciate your feedback.
The comments were interspersed with some of the article’s text as shown below.
Article Text: People often complain about incompetent, biased, and even vicious judges. That’s especially the case for litigants cursed with enduring the injustices of family law courts in the Western world.
I’d urge you to take a more accurate perspective: “complain” implies “moaning and groaning” or “sour grapes” by the person alerting the public to judicial abuse. More accurately, “Evidence of the incompetence, bias, and vicious judges on the San Diego Superior Court bench, and San Diego’s blind acceptance of such rampant abuse continues to mount.”
Article Text: Often the judges are causing more destruction by following bad laws as judges can’t make law on their own, aside from the judicial activists who may try only to be often overturned by a higher court.
Unfortunately, your statement that judges are merely “following bad laws” gives judges an excuse to duck their responsibility to interpret and apply laws equitably by “blaming” a “law” or the legislature that enacted it. Blaming a law is preposterous as judges in family court have tremendous discretion to interpret laws in light of individual circumstances. Witness the vague “best interests of the child” standard — in most cases where both parents have strengths and weaknesses as parents (we all inevitably do), determining the “best interests of the child” is nothing more than a guessing game supplemented by the judge’s own biases. A noted researcher who has studied application of the “best interests” standard concluded that the “best interests” standard is impossible to apply without inserting a judge’s or psychologist’s inherent personal bias. (O’Donohue & Bradley, 1999).
For example, is it in a child’s best interest to remain with a warm, but overprotective mother, or an intelligent, but not as nurturing father? Is it in the child’s best interest to be raised in the father’s Catholic home, or the mother’s Protestant religion? Do the burdens of moving away where the mother can start a new career outweigh the benefits of staying in the child’s traditional home town with a financially secure father?
O’Donohue & Bradley point out that even if we were able to read a crystal ball and determine how these questions would affect the child in the longer term, and even if these decisions did result in the child maturing into significantly different ways over time, who is to say that one outcome is “better” or “worse” for the child?
In essence, we’ve established a standard that is objectively unworkable except for judges and consultants pretending to make the “right” decision in the best interests of the child by inserting their own values and perspective. Granted, where one parent has serious abuse problems, it’s an easier call. However, those cases are likely a tiny fraction of the cases judges must rule on.
I submit that a far, far more effective method of permitting the child to achieve his best interests is to recognize that in 99% of cases parents — not judges — should decide what is best for their children. Parents have far more invested in their offspring, have long-term contact with them, and have tremendous affection. While it’s true that parents don’t always agree, the judge’s role should be focused on encouraging agreement and compromise — not making ham-fisted decisions that are biased in favor of their own values — which are likely far less consistent with the child’s sociological and psychological makeup than the parents’ decisions. Today’s courts simply fail to recognize that parents — given the proper education and incentives and not threatened with a complete loss of custody (or equally as often tempted with the “victory” of “winning” complete custody) — will almost always do what they believe is in their children’s best interests.
Blaming “the law” simply gives the judges a scapegoat: “The law is bad, not me.” This excuse is exactly why the public tolerates clumsy judicial intervention, and why judges continue to make very harmful decisions. I suggest not allowing the judges to “pass the buck” to politicians by giving them firm guidelines to achieve 50/50 custody in most cases, and limiting judicial discretion to vary from such guidelines.
I also suggest that characterizing a judge who interprets a law fairly as a “judicial activist” is an insult. Again, you’re given bad judges an excuse—“to do the right thing would make me an activist, therefore I have to do the wrong thing by inserting my own values and speculation. If you think I’m wrong, haven’t paid attention, or don’t know what I’m doing, blame the legislature.” Vague guidelines are often passed into law to give the judge the discretion to do the right thing — trusting in the judiciary. Thus, judicial intergrity in interpreting the law is a critical element in the effective function of legislation. Giving bad judges an excuse to do bad things completely undermines this function and permits bad results. Being a judge is an enormous responsibility to act in an unbiased way. Unfortunately this responsibility in San Diego family courts today is held by many arrogant, incompetent, and even corrupt people.
Article Text: Many times the judges may be more concerned with saving their political futures than with following the laws or dispensing fair rulings. Hence we get illegal and immoral “guilty until proven innocent” rulings that kick a person out of his or her home, ban contact with the kids, and label the person as a pseudo-criminal all without a shred of evidence based upon false allegations or distortions for which the false accuser will never be punished even if his or her lies are proven. For many suffering from the wrongs of the family law courts, this is business as usual.
It’s a good point, but judges are in fact elected. It’s not per se wrong for a judge to be concerned about a judge’s political future as a judge. It’s wrong for a judge to act irresponsibly, incompetently, or fraudulently in any way, or act in a way that promotes his or her political or financial future off the bench. For example, it’s well known that the San Diego family law community is a closed society. Family court judges often retire from the bench only to enter the practice or move on to judicial mediation and/or arbitration. They know that the attorneys appearing before them today will be their colleagues, clients, or even employers for decades to come. Yet another reason Judges so heavily favor represented parties in family court — they’re practically business partners. As such, judges inherently are acting out of their own self-interests or the interests of attorneys in their courtrooms rather than the litigants who will soon be history.
Article Text: Sometimes, however, a judge really is notably bad in ways beyond the typical judicial incompetence, selfish disregard for the rights of others, and maliciousness when displeased. Based upon public records and accounts of people who have been in her courtroom, Judge Lisa Schall of San Diego County, California, is one such judge.
While Judge Schall is certainly one such judge, the statement about her is true for far more judges than Judge Schall.
Article Text: The public should have had a chance to vote Schall out of office even if there was nobody else running for the office. She’s disreputable and abusive. She doesn’t belong in on the bench, even if nobody else wants the job.
It’s interesting that Judges and psychologists often respond to criticism with the following: “If I didn’t do it, somebody even worse would.” It’s the equivalent of a physician who is asked to perform outdated, harmful medicine stating, “yes, I know it’s no longer appropriate to amputate a leg for a small infection, but I have no choice because if I didn’t cause the harm, somebody else would.” The equivalent of Patty Hearst pleading innocent to bank robbery because Charlie Manson “made her do it.” I say “if you know you’re causing harm by incompetence, inability to provide necessary attention, or otherwise, then stop doing it altogether. Period.” Perhaps with enough judges acting ethically by ceasing to perform duties they can’t perform competently, the need for true reform would become evident. Until that happens, the “good enough for government work” standards and practices will continue to harm children and families.
Focus On Other Issues Doesn’t Excuse Bad Judges
In light of these comments, it’s clear that well-informed people who have experienced how horrible the family law courts are may have a variety of opinions as to how to fix the problems.
I can see how my focus on issues other than the misconduct of bias of individual bad judges may come across as “giving them an out” by suggesting how they can scapegoat the legislature and appeals courts for their harmful actions.
However, it’s my belief that a full fix for the broken courts requires far more than replacing individual judges. Changes to election laws are needed to ensure that the public has a right to veto judicial candidates who run unopposed but who are not acceptable. There also need to be protections written into the law that are not just left to the often wrong “discretion” of individual judges. For instance, shared parenting with 50/50 custody should be presumptive policy unless clear and convincing evidence shows otherwise.
Seeking Your Input
For the readers who are following this story, I’ve got two questions. Please vote just once on each question. You’re encouraged to pass around the link to the polls and articles.