Is Rexroad’s Push against Judge Basha a Threat to Judicial Independence?

Yolo County Supervisor Matt Rexroad has drafted a letter to Judge Janet Gaard, the current presiding judge in Yolo County, requesting that Judge Steven Basha be removed from presiding over juvenile dependency court.  He told the Vanguard in a phone conversation on Monday that he hopes his colleagues will sign onto it, but he doesn’t know if they will.

He said if they do not, he will likely send something on anyway.

Mr. Rexroad, as he lays out in the letter that the Vanguard published Monday (see here), has some legitimate concerns regarding Judge Basha and, more broadly, the dependency court.

At the meeting on Tuesday, Mr. Rexroad will ask his colleagues to issue a blanket objection to Judge Basha hearing juvenile dependency cases under Penal Code section 170.6, providing the right to challenge a particular judge and have the judge disqualified.  He contends that the judge has made statements indicating his bias in favor of reunification, which Mr. Rexroad believes is often not in the best interests of children in Yolo County.

Mr. Rexroad argues, “Judge Basha relegates social workers to a secondary role in Juvenile Dependency Court that impairs their ability to serve their vulnerable clients.”

He adds, “Compounding this problem, in a County initiated Foster Care Retaliation study conducted last year, Foster Parents strongly believed there is a ‘pervasive bias’ by Judge Basha and the court system towards birth parents and reunification.

“Those interviewed state that over his years on the bench, the Judge ‘has been outrageously pro reunification, and takes actions that negatively impact Foster Families.’ Foster Parents told investigators that the Court must ‘stop giving birth parents so many chances to fail.’”

All of these are legitimate concerns – however, our concern is whether the Board of Supervisors level is the appropriate venue to determine any of this.

For his part, Mr. Rexroad believes that it is.  In our phone conversation he explained that the county is often a party to dependency hearings and therefore has the power to use 170.6 to disqualify Judge Basha.  Judge Basha, he argues in his letter, has expressed bias and he pointed to the judge’s comments at a 2014 dinner honoring foster parents – I was also in attendance – as further evidence.

“I personally witnessed him … stand in front of a dinner honoring foster parents and state that, in the end, he was going to thank the foster parents and give the children back to their biological parents,” Mr. Rexroad said.

“The biological parents and the children in dependency court deserve a fair and open process. His public statements indicate judicial bias and cast his administration of the juvenile dependency court in a troubling light that, in my judgment, demonstrates the need for a new judge in this role,” Supervisor Rexroad wrote in the letter to Judge Gaard.

He said that Judge Gaard never responded to a meeting request with himself and fellow Supervisor Jim Provenza.  He told the Vanguard that people are not going to like this meeting, that it will be uncomfortable for Judge Basha, but he is tired of waiting.

While I personally agree with Mr. Rexroad here, as I have consistently had problems with the court system erring on the side of reunification when it was clearly putting vulnerable children at risk – I chafe at the idea that the Board of Supervisors is  the appropriate body to put political pressure on the courts.

The Vanguard asked longtime Yolo County Judge Dave Rosenberg for his take, but the judge declined comment, citing the Judicial Code of Ethics.

Instead, the Vanguard was referred to Shawn Landry, the Court Executive Officer for Yolo Superior Court, who forwarded a letter sent to the County Administrator’s Office (CAO):

“The goal of juvenile dependency proceedings is to protect children and preserve or reunify families whenever possible. Juvenile dependency hearings are especially challenging because, by law, they are not open to the public (to protect the confidentiality of the affected children and parents), and, also by law, every reasonable effort must be made to reunify the dependent child with his or her parents.

“The Judicial Branch of government’s role is to provide neutral courtrooms for disputes between litigants. Judges, as Constitutional Officers, make many decisions every day about sensitive issues that affect the lives of those litigants. Inevitably, any decision will satisfy some and will not satisfy others.

“To maintain neutrality and the integrity of the judicial process, judges are prohibited by statute and the Judicial Code of Ethics from commenting about cases that come before the court. (Issues about rulings in individual cases can only be presented to the court in hearings on those cases, whether in the trial court or on appeal.) However, we always give serious consideration to any concerns registered about the court system. To avoid any misunderstanding it is best if we receive in writing specifics about the nature of the concern. The Court cannot give legal advice, however, so you may wish to talk to your attorney, the County Counsel, about ways in which your concerns may be addressed.”

In my view, Mr. Rexroad’s actions set a dangerous potential precedent that the county could get involved in pushing for the removal of a judge, in other situations, who might be perceived as too lenient on defendants or rules the wrong way on a high profile case.

We have a separation of powers for a reason – and the need for judges to be separated from the politics of the day is paramount to the concept of judicial independence.  We want a judge to weigh in on a specific case based on the law, not on political pressure from citizens or another elected body.

Mr. Rexroad cited an incident in which 170.6 was used in a blanket way by the DA’s office, in which the judge was removed from the criminal court and placed into civil court for a time.  But, in our view, as we have seen a few of these in the last eight years, it often biases not only the sitting judge but other judges to be fearful to take on the DA’s office.

While we happen to believe that Mr. Rexroad is correct in his objection to Judge Basha stating his opinion on dependency cases in a public venue, the recourse here is problematic.

He asked me if I had a better solution – while I do not have one to the immediate situation, I think we need to re-examine not only dependency courts but also family courts, and make the paramount and overriding consideration be the welfare of the children.

That requires us to change laws at the state level, which I think will avoid the Board of Supervisors having to put their hands on the scales at the county level.

Again, I fully agree with Mr. Rexroad’s concern, I just worry that his remedy might be worse than the disease.

—David M. Greenwald reporting



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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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24 thoughts on “Is Rexroad’s Push against Judge Basha a Threat to Judicial Independence?”

  1. Matt Rexroad

    So we agree that kids are getting bad outcomes with reunification efforts that are not advisable.  So instead of doing something about it you want me just to sit by and shrug my shoulders.  No thank you.

    I believe any other judge in Yolo County will likely give kids better outcomes.  So I am willing to let any other judge decide.  What is wrong with that?

    Matt Rexroad

    916-539-0455

  2. Matt Rexroad

    So we agree that kids are getting bad outcomes with reunification efforts that are not advisable.  Instead of doing something about it you want me just to sit by and shrug my shoulders.  No thank you.

    The law gives me a remedy…. why would I not use it?

    I believe any other judge in Yolo County will likely give kids better outcomes.  So I am willing to let any other judge decide.  What is wrong with that?

    Matt Rexroad

    916-539-0455

  3. Tia Will

    every reasonable effort must be made to reunify the dependent child with his or her parents.”

    But this principle is taking precedence over the well being of the children in our county.

    I just worry that his remedy might be worse than the disease.”

    Within the past three years in Yolo County we have seen two children die from the consequences of putting parental interests ahead of the well being of the child. In the Talamontes case, we had children placed with their mother who is reported to have actually said to a social worker that she was incapable of caring for them. In the baby Justice case, the mother was known to have been using meth throughout the pregnancy, was tested positive repeatedly, and the infant was diagnosed with withdrawal while in the safety of the ICN and was still sent home with his parents. I fail to see what could be worse than a “disease” that leads to children’s deaths.

    I do not know if Matt Rexroad’s solution is the best approach, but I strongly stand with him in not remaining silent just because he is a regional politician. I am not being dramatic when I say that this is a life and death matter and I am willing to accept anyone bringing it to public attention.

     

     

  4. Richard McCann

    I’m not informed enough about the situation to know if these cases are being handled appropriately or not. However, I do believe that the Supervisors are following the appropriate procedures to object to how they perceive these matters are being handled by a specific judge. The Supervisors direct and manage the county welfare services and should act on behalf of the interests of those agencies as the elected officials. This responsibility should not be delegated to administrative heads of those departments. Making a legal challenge to be considered by the court is the correct method to use.

    If the Supervisors had threatened to cut the judge’s salary or make some other direct budgetary threat, that would be inappropriate. That’s not the case here.

      1. Tia Will

        There were two distinct motions. The first was a request for a rotation of judges. The second was the 170.6. Both passed on a 4-1 vote with Saylor dissenting.

        1. Howard P

          Sure… I was ‘speed-reading’, and completely missed that… my bad… but Eric added nuance to the appropriateness of the invocation of that… after I read Eric’s post, I ‘googled’ it, quick read it, and hence my followup question that perhaps you and/or Eric may choose to respond to…

  5. Tia Will

    I would also have been stunned by the result had I not been at the Board meeting this afternoon. There were a number of individuals who spoke quite eloquently both against and in support of the judges philosophy. I also believe that it was telling that the subcommittee of Supervisor Provenza and Supervisor Rexroad had made attempts to collaborate with the courts in attempting to find another solution and that the courts had refused to participate.  In the end, I do not know what made the vote go as it did, but by the end of the requested presentations and public comment, it was not very surprising.

  6. Eric Gelber

    A 170.6 motion allows a party to a case (e.g., the County in a dependency court proceeding) to file a motion asserting that judge is prejudiced against a party or attorney or interest of a party. That’s acceptable. In this instance, however, Max Rexroad is asking that a judge be disqualified from hearing any dependency proceedings. That, I believe, goes too far and is a threat to the essential independence of the judiciary. Judges should be deciding cases based on their understanding of the law and facts, not to avoid criticism or removal. There are appeals processes to challenge decisions and correct mistakes. Threats and intimidation by public officials to have a judge disqualified from any proceedings in dependency court is an abuse of authority. Just my opinion.

    1. Tia Will

      Hi Eric,

      I had never heard of this process before today’s meeting. However, one of the things that was brought up was that there have been 170.6 motions which have been made with regard to this judge with regard to permanent placements in the past. A lawyer who I believe was representing the county, seemed to feel that given the totality of circumstances and the court’s denial of the request to consider alternative remedies that this was a reasonable course of action.

      1. David Greenwald

        Oh really Tia ;). I have written extensively on this in the past and I can bet money that you have commented on the article.  I’ll have to look it up.

        1. Tia Will

          David

          Right. I did not become involved with the Vanguard until November of 2011 at the time of the pepper spray incident and would likely have blown this article off until well after that time.

      2. Eric Gelber

        A lawyer representing the County would, of course, support his/her client’s position.

        I doubt there are many judges who haven’t had 170.6 motions filed against them.

        1. Tia Will

          Eric

          I would agree that the lawyer would support their client’s position. However, at the time of his discussion, he did not yet know what that position was as the vote had not yet occurred. He was making clarifying comments so that the supervisor’s would fully understand the implications of their vote in advance.

    2. Howard P

      Eric… did a quick google search, and it appears that a 170.6 is meant for use, literally, ‘on a case by case basis’… is that consistent with the second portion of your 5:30 post?  That it is not meant ‘generically’, but ‘specifically’?

      If that’s correct, might be a good “shot over the bow”, but not compelling to the assignment of judges…

      1. David Greenwald

        Howard:

        First, it would have to be applied on a case by case basis.

        Second, county council noted that blanket 170.6’s are generally frowned upon

        But, the board majority felt this was a circumstance that warranted an extreme measure and I was very surprised (watching it) that they went this route (as was Matt Rexroad).

  7. Tia Will

    Two points that I believe have been covered, but probably not stressed sufficiently to have stood out in people’s minds as mitigating factors in what appears to be a highly unusual and unorthodox approach.

    1. In establishing prejudice which is required for the .6 action, the judge had supplied evidence in his own words corroborated by a number of different individuals as heard during at least 3 separate events. He was confirmed as having said ( paraphrased) that at the end of the day, while he appreciated the efforts of the foster parents, he would be returning the children to their biologic parents. In at least one case, he had accepted the man’s word that he was the biologic parent although that was questionable, denied a request for DNA testing for confirmation, and relented only when the man declined the placement himself. Hearing this statement of his intent, it was hard not to ascribe prejudice to his decision making in these cases.

    2. This was not a sudden, rash decision on the part of Supervisor Rexroad, who along with Supervisor Provenza had requested meetings with appropriate officers of the court to attempt to work on a less drastic solution, but whose request had been denied. Not neglected nor delayed, but denied.

     

    1. Howard P

      The question remains, based on what County counsel said,

      County Counsel Philip Pogledich explained that, while we heard serious concerns, “those are matters that are not prejudice but relate more to whether the judge is administering courtroom in an appropriate manner.”
      He pointed out that in signing a 170.6 motion you sign under penalty of perjury, and “the judge under whom this case is assigned is prejudiced against the party, its attorney or its interests so that said party cannot or believes it cannot have a fair and impartial trial or hearing before such judge.
      “The standard is prejudice,” he explained.  “From my perspective a blanket 170.6 is something to take very very seriously.  It is a practice that is strongly disapproved by the California Supreme Court.

      Unless of course you believe the BOS should act in a way inconsistent with legal precedent.
      David opined,

      While we happen to believe that Mr. Rexroad is correct in his objection to Judge Basha stating his opinion on dependency cases in a public venue, the recourse here is problematic.

      and,

       I fully agree with Mr. Rexroad’s concern, I just worry that his remedy might be worse than the disease

      I pretty much believe I am in full agreement with the excerpted passages re: Phil and David’s words.  Davis expressed his concerns fairly eloquently, as (as I read it) potentially blurring lines between “executive” and “judicial” branches… bet the prez would love to interfere more in the judicial branch on ‘travel restrictions’ and ‘sanctuary Cities/States’

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