There are a number of surprising things about what happened on Tuesday, with the Yolo County Board of Supervisors voting 4-1 to issue a blanket request, per Code of Civil Procedure section 170.6, to reassign Judge Steven Basha from presiding over juvenile matters.
First, I am surprised that it has not gotten more press from outside of Yolo County, as this is a fairly extreme and perhaps even unprecedented action for a county board.
Second, while I am not surprised that Supervisor Matt Rexroad would push this matter – I think he has raised strong reasons to do so – what caught me off guard was the 4-1 vote and the fact that both Supervisors Jim Provenza and Oscar Villegas – two very cautious men – joined in this action.
Having spoken to Mr. Rexroad on Monday morning, I think even he was caught off guard by the vote – he certainly did not know which way his colleagues would go.
In doing so, they in effect ignored the admonishments from their own county counsel on this.
County Counsel Philip Pogledich’s warned, “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.”
I remain concerned about the impact on judicial independence. Mr. Rexroad was probably directly addressing my Tuesday column when he pointed out in his comments that he is not trying to presuppose a ruling, only trying to make sure it is done by someone who is fair and impartial.
The problem is that the action itself has the potential of a chilling effect that says if we deem you to be making rulings outside of the normal range in terms of the number of reunifications or bypasses, we are going to take matters out of your hands.
I heard from attorneys, interestingly enough, from across the state, alarmed by this use of 170.6 by the board.
At the same time, it becomes clear that this is a message from the board to the judges that we have a concern and you are not addressing it. The court outright refused to meet with board members. The court flat out turned down $75,000 from the county to fund a dedicated minor’s counsel – both things cited by Jim Provenza as reasons why he ultimately took this action.
“I think I’m of the mind right now that we need to take the action suggested by Supervisor Matt Rexroad in order to address these systemic problems,” he said. He said, “I don’t want to do this at all, (but) I think it’s the right thing to do for children.”
Supervisor Villegas had a similar response, “It is very troubling that we are not able to get to a very essential part of our puzzle here to be able to communicate to the courts.”
As one person pointed out, there is a clear misunderstanding of the law here and what the court’s responsibilities are but, without having the court even make an appearance at the meeting on Tuesday, there was no one to explain these factors to the board.
At the same time, I believe that the board did not get enough data here. My own experiences in the system suggest that this is far more complicated than portrayed on Tuesday.
And from different sources came different information. I think there is a clear notion that there are problems in the system, but not a clear sense for the solution.
John Myers, a law professor at McGeorge Law School, has acted as conflict counsel in dependency cases in Yolo County. He noted that the board is doing more than most counties to solve this problem.
“I don’t think the solution is the judge,” he told the board. He noted the caseload of 250 to 300 cases for the attorneys, “that’s malpractice per se. You can’t do it. You can’t be a competent lawyer and have that kind of a caseload.”
He also said that he would like to see a more aggressive approach by county counsel toward bypass – meaning bypassing reunification in cases where the parent is clearly unsuited.
In his letter to the board, he wrote, “A judge should not be criticized for ruling against the government unless there is clear evidence of systematic bias in the judge’s rulings. I see no evidence of such bias in Judge Basha’s rulings. As I have appeared before him, I have detected no bias of any type, except an abiding ‘bias’ to do the fair and correct thing for all concerned, but especially for the children of our county. Finally, it is worth noting that in the vast majority of cases, Judge Basha orders what the Department requests.”
In comments to the board, he said he preferred the term judicial philosophy to bias. “I think that Judge Basha has a judicial philosophy that may tend in the direction of permanence but the law requires him to favor parental rights, he doesn’t have a choice,” he said.
Tracey Fauver, Executive Director of Yolo County CASA (Court Appointed Special Advocates), said, “We find that Supervisor Rexroad’s concern that Judge Basha is overly biased towards reunification without the consideration of the best interest of the child to be unfair and unfounded.”
On the other hand of the spectrum comes the former foster and adoptive mother who inexplicably was dragged into a lengthy court battle for the adoption of her daughter because Judge Basha, according to her account, granted parental rights to a man with a long criminal background and refused to do any sort of paternity test.
These kinds of cases are harmful to the kids and discourage foster families from coming forward.
But, as another CASA pointed out, “Supervisor Rexroad has provided a range of opinion as to Judge Basha’s alleged bias, notably biased itself in canvassing only the children’s services side of what is a two party adversarial model. But he hasn’t provided enough data.”
One source with extensive experience in the dependency system told us that the system is already stacked against biological parents and that Judge Basha is on the extreme side of the ledger mostly because he’s more fair to biological parents than most.
There are problems in the system, but it was pointed out to the Vanguard that two of the most egregious cases in Yolo – the Talamantes case and the Baby Justice case – were cases where social workers themselves made the call, not the judge or the dependency court.
Ms. Fauver’s comment also rings true here, “It is very easy to find fault in an under-resourced and bureaucratic [system] that deals with families in their worst life moments.”
So where does this end up? I think the board took a very extreme action – it is really a shot across the bow to the judges here, that they need to be more cooperative with the concerns of the board on this issue.
But I worry that the impact of the 170.6 blanket motion will have profound and unforeseen consequences that may go well beyond this instant issue.
—David M. Greenwald reporting