California’s secret courts

When Judge Gerald Corman heads into a Sacramento courtroom these days, he usually does it with a smile. His mood wasn’t always so upbeat.

For 16 years, Corman rode a bench in Merced County, where family law cases account for 20 percent of the superior court schedule, but where he was among the fewer than 10 percent of judges assigned to hear them. He often worried he didn’t have enough time to prepare for the deeply personal stories he was called to judge.

“The caseload was horrific,” Corman remembered.

The situation isn’t much better in Sacramento County, where more than a decade of underfunding by the state has turned family court into an expensive and emotionally draining gauntlet.

Corman and other retired judges have left that gauntlet to take up gavels as private judges. Their little-known, boutique field allows litigants with money to bypass the public courts by agreeing to have retired judges hear their cases and to abide by the rulings. The clients pay for the privilege, but their cases are nearly always resolved faster by judges who are better prepared and more focused.

These are the types of family law cases Corman now hears. Gone are his days waiting months to reserve a courtroom for a lengthy hearing. No longer is he working through lunch and juggling 50 to 100 cases at a time. Corman says he feels sharp when he reviews a case, and good knowing that some extra money up front is saving all parties in the long run.

Yet Corman is also the first to admit that private courts for the well-off highlight an ugly reality—how slow and traumatic family court in California can be for 99 percent of its clients.

“Cases wind up getting put over, and that snowballs to the point where hearings just get harder and harder to get,” Corman said. “For family courts in the counties to function the way the private system does, the state would probably need to triple the number of courts and judges.”

Private judging started gaining steam in California in the early 1980s, particularly in the Los Angeles area. It allowed people with means to avoid the congestion in civil and family courts.

The process is straightforward: The parties enter into a legal agreement to select and pay for a retired judge to act as “the judge for all causes.” All codes for civil procedure within California law still apply, and the private judge’s rulings are binding.

Legal experts generally agree that family law lends itself well to the private system because family court matters are always decided by a judge, rather than a jury.

In 2017, retired California Court of Appeals Justice Sheila Sonenshine and attorney Saul Gelbart did a cost comparison between a privately judged divorce and a publicly judged divorce with similar elements. Factoring in the wife’s attorney, the husband’s attorney and several paid experts, the analysis found the public divorce cost all parties a collective total of $96,600, while the private cost $69,000.

Attorney Stephen Wagner, a 44-year veteran of family law in Sacramento, says he can easily explain to his clients why using a private judge will save them money in the long run.

“In the public system, if you’re an attorney on the 9 o’clock calendar, you’re probably not getting called by the judge until 10 o’clock, sometimes 10:30, and the client’s paying the whole time for you to sit there. But in the private system, if you’re on the calendar for 9 o’clock, you start at 9 o’clock,” Wagner said. “And the cases move faster in the private system. In the pubic system, even a relatively straightforward divorce will take one to three years. And the more complex, the longer they take.”

Corman agrees, saying the private system is as functional as the public version is dysfunctional.

“In the regular courts, they get bogged down because they’re waiting on objection hearings, or sanction hearings, or waiting because documents haven’t been provided,” Corman noted. “When a judge [in the private system] has a lot of experience with case management, you can try to avoid all that.”

Another reason people opt for the private system is the privacy.

Regular family court, barring sensitive testimony about children and minors, is open to the public. Private hearings are held behind closed doors—usually a conference room—and the public is barred.

That means wealthy and high-profile clients don’t have to worry about courtroom spectators watching as unflattering or sensitive details of their cases are discussed. Rosemarie Chiusano, a manager with Judicate West in Sacramento, which helps lawyers customize private judging assignments for cases, says that the discretion factor really appeals to most clients.

“If there’s a hearing, it’s going to be held in a private setting,” she said, though the case files themselves are still typically public.

The perks around private judging have been controversial for years. Wagner remembers that in the early 1980s, Sacramento Superior Court officials were mainly opposed to the option. Several of the sitting judges worried it created a two-tiered, class-based system of justice.

“In recent years, they don’t look down on it as much,” Wagner said.

For Sacramento couples navigating a divorce in superior court, the experience is dramatically different than the private system. Funding cuts during the recession hit all sectors of the local judiciary. It’s still a problem.

The Judicial Council of California uses a complex formula to determine the ideal budget for each county court system, but only provides about 80 percent of the funding to Sacramento, depending on the year. This has a direct effect on the number of available judges.

“Sacramento, historically, has been deemed an under-judged entity, so the need is greater than we’re allocated,” said Sacramento Superior Court business analyst Kim Pedersen. “We’ve been sitting as an under-judged county since the mid 2000s.”

According to Pedersen and other court staff, the trend has created a particularly difficult situation in family court. The 2014-15 fiscal year report to the Judicial Council noted that staff could no longer provide “next steps and procedural assistance” to family law litigants in person, only by email.

The next year’s report was only slightly better, noting “limited” in-person assistance had been restored, though lack of funding still meant “very few self-help workshops and minimal services for domestic violence victims.”

The 2017 report remained bleak and last year’s highlighted yet another issue. The court received more than 18,806 family and juvenile filings—or new cases—in 2018. At the same time, 83 percent of family court litigants proceeded without attorneys.

“The court is experiencing workload increases because cases are taking longer to adjudicate due to additional legislatively mandated requirements and increases in the number of self-represented litigants,” the staff noted, adding that individuals without legal representation often commit legal errors that further slow down their cases.

Candice Lee, who’s enduring a five-year custody battle in Sacramento’s family court, said she already believed there were too many “pay to play” elements to the public judicial system. To her, learning there’s a private alternative she can’t afford just rubs salt in the wound.

“You see the same people over and over,” Lee said of the family court departments. “There’s not much life going on there. It just seems like a lot of hopelessness.”

In February, Sacramento Superior Court added one additional department for family hearings. Lora Grevious, a local attorney who has practiced seven years in that field, says she still expects long waits.

“Some of these cases have allegations of domestic violence and child abuse—things that are urgent for the families involved—and when they go to trial on them, they’re told it’s going to take five months,” Grevious said. “The lack of court reporters is another huge problem, because you can’t appeal something if there is no court reporter. … In those areas where people represent themselves the most, like family law, it’s critical for them to have those transcripts if they’re going to have a chance at justice in the system.”

Wagner, who handles cases in both the public and private systems, agrees with Corman’s assessment that the only way to make the public courts as effective as the private system would be to triple the number of judges and build courtrooms for them.

“The judges in the public system are just so overtaxed,” Wagner stressed.

But Corman is quick to caution that, even for those who can afford to avoid the public system, private judging can’t solve every problem in family court.

“The reality is family law is not about cases where you’re going to win,” Corman observed. “It’s about minimizing damages. It’s just the nature of the beast.”