Excerpt from "OFF THE RECORD"

The Lehan Matter

by Mark Scaramella

LAST SPRING the California's Commission on Judicial Performance announced its 2003 Private Discipline Summaries. Under "Private admonishments" we learned that such admonishments are "designed in part to correct problems at an early stage, thus serving the Commission's larger purpose of maintaining the integrity of the California judiciary. A private admonishment may also be used to elevate discipline in subsequent proceedings. This is particularly true where the judge repeats the conduct which was the subject of the earlier discipline."

IN 2003, the Commission imposed two private admonishments for the entire state of California. "These examples are intended in part to educate judges and the public, and to assist judges in avoiding inappropriate conduct." However, "the Commission believes it is better to describe them in abbreviated form than to omit them altogether."

"THE JUDGE made sexually suggestive gestures and comments to a court reporter, an employee of the prosecutor's office and a courthouse visitor," said the Commission, referring to Judge Jonathan Lehan of Ten Mile Court in Fort Bragg. "The judge behaved offensively in front of court staff," the admonishment continues. "The judge also failed to disclose when a friend and former law partner appeared before the judge under circumstances that required disclosure, not recusal. The judge also engaged in an ex parte contact with an attorney immediately prior to a hearing in which the attorney appeared before the judge."

THE FORMER law partner was Bart Kronfeld, a criminal defense attorney on the Coast. The attorney with which Lehan had an "ex parte contact" was Coastal attorney Mary O'Rourke.

IN A SECOND admonishment, the Commission added, "The Judge's remarks concerning litigants in two separate matters displayed bias and offensive demeanor."

ACCORDING to the Oxford English Dictionary (OED) to "admonish" means "to charge authoritatively, urge to do that which one should do. Put in mind of duties; counsel; warn. Also, reprimand, rebuke. Also warn or caution against danger."

BUT the warning does not appear to have been heeded.

IN A DECEMBER 5, letter to Mendocino County Presiding Judge Eric Labowitz, Helen Grieco, Executive Director of California's National Organization of Women, wrote:

"CALIFORNIA National Organization for Women (CA-NOW) is writing today to express our deep concern that the Mendocino Superior Court continues to employ a judge, Jonathan Lehan, as a judge in your family law division in Fort Bragg. Judge Lehan has previously been deemed unfit to hear criminal cases for undisclosed reasons, but continues to hear family law cases. Numerous complaints to CA-NOW report Judge Lehan's egregious misconduct in dealing with custody and support issues in divorce proceedings.

"ACCORDING to the Fort Bragg Advocate newspaper, in October 2004, the Mendocino County District attorney's office, 'at the direction of the Mendocino County District Attorney Norm Vroman, has asked Judge Jonathan Lehan to recuse himself in all new cases and in most pending and continuing cases.' In conversations with the paper, the District Attorney confirmed that the challenges were 'blanket' filings in an attempt to make radical changes at Ten Mile Court. The district attorney would not give specifics about Lehan's recusal, but did say that 'People are not getting a fair shake' in his courtroom. The Advocate also reported that District Attorney Vroman said for that, "Overall, the general quality of justice in that courtroom doesn't meet the standards that it should," adding that the "People on the Coast deserve better." How could, then, that Judge be considered fit to rule on family law cases? Do families not deserve a fair shake? Do the innocent children of divorce not deserve better?

"JUDGE LEHAN's hiatus from criminal court was explained as a discretionary reassignment by Ron Brown, then presiding judge of the Mendocino County Superior Court. It seems clear that Judge Lehan needs a permanent reassignment from the family law courts.

"CA-NOW has received several complaints from women who feel their family law cases were/are being mishandled by Judge Lehan. Complaints included: denial of due process; making judgments that ignore reports of domestic violence; refusal to have evidentiary hearings before significant change in visitation; refusal to hear evidence provided by professionals directly involved with supervision; allowing expert testimony from professional who are not qualified; favoring certain attorneys and refusing to recuse himself when there is an obvious conflict of interest; inappropriate ex parte contact; denial of granting attorneys' fees where necessary; failure to follow proper protocol in court.

"THESE COMPLAINTS have been substantiated by individuals observing Judge Lehan's courtroom and review of court cases.

"IT IS OUTRAGEOUS to us that Judge Lehan would be deemed unfit to oversee criminal cases, but not removed from hearing cases that profoundly affect your county's families. The citizens of Fort Bragg have a right to a fair and impartial judge hearing their family law cases. We implore you, and your sense of justice, to address this complaint from CA-NOW, the largest, state feminist organization in the country, and do what is in your power to remove Judge Lehan from hearing family law cases. The very essence of your county's community depends on it, and the families who seek guidance by your court deserve it."

MS. GRIECO sent copies of her letter to Judge Lehan, the California Commission on Judicial Performance, the District Attorney's office, Mendocino Project Sanctuary, Mendocino Victim-Witness Program, and to Mendocino Child Protective Services.

TWO WEEKS AGO, prior to receiving this letter, Judge Labowitz told the Santa Rosa Press Democrat that he didn't think that Vroman's recusal motions were a serious problem and that he had no intention of doing anything about the disruption which the recusals caused. Most new criminal cases had to be transferred to Willits or Ukiah causing witnesses, victims, cops, attorneys, defendants and family members and court staff to be juggled and moved, involving up to hour and a half trips (to Ukiah).

A COAST Group, Taxpayers for Accountable Government, considered the problem and court disruption so serious that they filed for an injunction — in Lehan's court — to stop the DA's recusals. This action caused the San Francisco Daily Journal, a legal trade industry publication, to take notice of the expanding problem.

IN SF DAILY JOURNAL reporter John Roemer's summary of the Lehan matter published December 6th, Judge Labowitz, had changed his position somewhat.

"THERE MAY BE a personality mix [between deputy DAs and the judge] in that courtroom," said Labowitz. "But I don't see that in the Code of Civil procedure as a reason to disqualify." Labowitz told Roemer that "Vroman has yet to give him specifics about misconduct by Lehan. 'Nothing's been taken up on appeal,' Labowitz said. "What I hear from Vroman is style, and that's not a reason either [for disqualification]'."

LABOWITZ, however, added that "in January he [Labowitz] may switch a judge from Ukiah one day a week to hear criminal matters in Fort Bragg so that coastal residents don't have to make the long trip inland. 'It's an inconvenience, I agree,' he said. If criminal trials arise in Fort Bragg, he'll assign a different judge to hear those, he added, but he noted that only four such trials took place last year."

THE BULK of Roemer's article characterized Vroman's actions as simply a personality conflict between Vroman and Lehan, not a matter of judicial competence. However, Roemer's sources for the "personality conflict" are attorneys like Mendocino-based land use attorney Steve Antler, who haven't spent much time in Lehan's courtroom, and on Labowitz himself, who also hasn't spent much time in Lehan's courtroom.

BUT, Ms. Grieco's strongly worded letter, based on her organization's specially selected observers who spent time in Lehan's courtroom and reviewed several family law cases, adds substantial weight to Vroman's blanket recusals because Ms. Grieco's letter is similar to some of the complaints made by Vroman, but in family law cases — not criminal cases.

ALTHOUGH LEHAN told Roemer that coast voters had elected him "in a landslide" in 2002 when Deputy DA Mark Kalina ran against him, most of those voters had not seen Lehan in action in court either, and very little of a critical nature had been publicized, other than Kalina's reference to Lehan's court as a "catch and release court."

TAKEN together however, the Judicial Commission's admonishment, Vroman's refusal to allow Lehan to hear criminal cases and the letter from California NOW, comprise an increasing indictment of Lehan which will be increasingly difficult to ignore. Either Presiding judge Labowitz, who plans to retire rather than run for re-election again, will have to find a way to re-assign Lehan, as Judge Brown did in 2003 for the incidents referred to by the Judicial Commission's admonishment, or Judge Lehan will simply have to resign.