A judge inexplicably burdened


California Judge Reviews Judge entry on Cynthia Ming Mei Lee supplied by law ibrary in 2016
Extract from the entry on Cynthia Ming-Mei Lee, mostly as a criminal law judge, in California Judge Reviews, Elizabeth Smith and Mark Thompson, 2016

Why did the San Francisco civil court assign the Honorable Cynthia Ming-Mei Lee to preside over a trial in a complex sub-branch of law when it knew that she had none of the necessary skills and background? Approaching 70, she had spent her long career in criminal law. A disturbing possibility is that as she was the court’s presiding judge at the time, she assigned herself to the task.

Ÿ• The judge admitted that she was struggling to get to grips with civil law

This does appear to be part of the explanation for proceedings described as ‘bizarre’ by my former partner, the defendant and a fellow judicial officer, after the trial was over. In July of 2015, two months after Judge Lee ruled on my case, the Daily Journal, a newspaper for California lawyers, recorded in a profile of her career:

In her current assignment handling civil trials, she is exactly where she wants to be: scaling a steep learning curve.’ She confessed that this was ‘a struggle’ for her, ‘but I decided I wanted the challenge of civil trials.’ ( 29 July 2015; Library access only, for non-subscribers. )

By April of the following year — nearly a year after she issued her statement of decision circulating on the internet — this was the list of all the civil cases she had ever heard, sent by the court in reply to my public information request: common counts/open book account/collections; professional negligence; contract/warranty; injunctive relief; construction; wrongful eviction; malpractice – medical/dental; personal injury/property damage – vehicle related; quiet title – real property; other non exempt complaints; writs of mandate or proh., certi., etc./admin. agen; auto accident; money; unlawful detainer – residential; unlawful detainer – commercial; other probate; trust.

Ÿ• An area of law with a well-acknowledged ‘application’ problem

Nothing on the list of cases heard by this judge suggests that it could have been fair to saddle her with my case resting, in California, on so-called ‘Marvin’ law for deciding the rights of unmarried cohabitants, a category that taxes the powers of judges who have spent their careers in family law. Göran Lind, the reigning international authority on trends in court decisions in this branch of law in European and English-speaking countries has written:

The case law from the entire Western world discloses how difficult it is, in each individual case, to investigate and evaluate the parties’ contributions in the form of work in the home, financial contributions, purchases of property, and consumption.

… These investigative difficulties, as well as the lack of clarity that ordinarily permeates the relevant private law principles, has created extensive application difficulties, disputes, and, above all, considerable legal uncertainty.

Common Law Marriage: a Legal Institution for Cohabitation, Oxford University Press, 2008.

Ÿ• Recusal would have been appropriate and should have been obligatory

The judge did not take what was unquestionably the right course — to recuse herself from deciding a case with the glaring conflict of interest presented by my former partner’s position as a court officer for nearly four decades.

The first canon in the American Bar Association’s code of judicial conduct states:

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

‘I don’t need to have a transcript’

Had the trial been watchable live and online by anyone with internet access, would this judge have been able to rely mainly on her selective reconstruction of the proceedings — rather than the independent and objective record of a court reporter? In the Treatment of Facts section of this blog I have noted some of the damaging consequences of this for me.

At the unannounced continuation of the trial on 27 January 2015, the reporter’s transcript states that the judge made a special point of saying, ‘I don’t need to have a transcript because I took copious notes,’ and at another juncture in the day’s proceedings, ‘I’m a devoted note-taker.’

At the 12 March hearing a few weeks later at which she announced her tentative statement of decision, the judge explained her refusal to read my substantiations of answers to questions she had asked about the history of the relationship — which were tied closely to references to the reporters’ transcripts. She said that the pale yellow highlighter marks in the copy of the transcript I gave her — because many California courts, like this one, no longer employ court reporters or own transcripts — made it ‘frankly inappropriate for the court to use as a reference’.

In written objections to this refusal that I filed on 25 March, I had to point out that:

Ÿ• Unlike the judge’s private notes, a court reporter’s transcript can be vetted for accuracy by the parties on both sides of a case – and mistakes in them can be corrected.

ŸŸ• That the judge’s personal notes could only be partial, selective and unreliable – because impressions of the significance of particular points made in testimony are bound to change as their context unfolds, as a trial progresses.

ŸŸ• That a trial judge is entrusted with far more weighty tasks than accurate and dependable transcription of testimony (for which parties are now obliged to pay themselves, fees that can run into thousands of dollars).

Judge Lee’s eventual response was to request copies of the transcripts without highlights — and in addition, for unidentified portions of them in ‘ex-parte’ (effectively private, unlawful) communications with my former partner about which I had to file a separate, formal complaint. She could have asked for them before and, had she followed California’s rules for correct procedure, would have addressed her request to both me and him.

The damaging effects of her primary reliance on her own notes were obvious. Her statement of decision on 14 May 2015 was in all major respects, including its conclusion, identical to the tentative ruling based on her inaccurate and one-sided record of testimony on the facts of the case. (See Treatment of Facts.)

If the task of adjudicating this case was unfair to a judge struggling on her ‘steep learning curve,’ her assignment to it was arguably even more so to a plaintiff awarded nothing in damages or support after a 16-year unmarried partnership with a fellow-judge.

Unlike trial judges, appellate justices are generalists. They do not need to have any background in the branch of law whose application they have to vet in any particular case. This meant that the First District Court of Appeal could not compensate for what the trial court did not know about California’s legal protections for the rights of unmarried cohabitants.