Sacramento, Calif.- by Robert J Hansen
The heir to the Paul Mitchell Company, Angus Mitchell who is estimated to be worth more than $500 million, hired a private judge to oversee his divorce.
Retired California Court of Appeals Justice Sheila Sonenshine told the Sacramento News and Review that an analysis found public divorces cost all parties a collective total of $96,600, while the private cost $69,000.
Yet, Sonenshine was paid nearly $1 million to act as the private judge in the Mitchell divorce. And the law firm representing Angus’ wife made nearly $6 million according to court records.
Divorce cases in California are public proceedings. When a family law case is filed, it is assigned to an elected or appointed public judge in the family law division.
Public or elected judges, like retired Sacramento Judge Gerald Corman, encourage private judging because they say it substantially decreases their workloads.
Corman, now a private judge, told the Sac News and Review that he often worried he didn’t have enough time to prepare for the cases he was called to judge.
However, California has a statutory scheme that allows wealthy individuals like Angus to have their family law cases reassigned to a “privately compensated temporary judge,” or a private judge.
Indeed, the only thing “private” about a private judge is how they are compensated.
Shortly after they were married, Angus Michell’s ’ wife had a baby. When she left the hospital, it took her quite some time to recover from the child-birth complications she had endured.
While she was at home recovering from a severe infection, she was holding her seven-week-old son when Angus’ private chef entered the mansion and served her with divorce papers.
Meanwhile, Angus was using his company as a "hunting ground to find women to date and have sex with," according to a lawsuit filed by a former employee in 2016 for coercing and cajoling her to have sex with him.
The former employee says that in Sept. 2015, Angus invited her to his home, gave her a glass of wine, and while he was talking about his recent divorce, he grabbed her face and forcibly kissed her.
In a 2017 hearing on custody for Mitchell's young son, Justice Sonenshine ruled in favor of Angus, the party paying her fees.
In 2022, the court docket shows the matter is ongoing though private judge Sonenshine is no longer being privately paid to help resolve the case.
An attorney with the Cochran Law Firm, Ed Lyman, thinks private judging shouldn’t be legal.
“The whole idea that parties can pick the judge they want is nonsensical,” Lyman said. “The parties should have no role in picking who the judge is going to be.”
Private judges are authorized to conduct hearings and trials whenever and wherever they please. This can easily feed into an unsuspecting party’s misbelief that the proceedings in his or her case are somehow “private.” Some ethically-challenged attorneys will imply to their clients that the use of a private judge will conceal the case from the public.
Lyman, who represented Angus’ wife in the divorce, said that the economic incentive private judges have to prolong cases is disadvantageous to the less wealthy party.
“When someone is getting paid $800 to $1,000 an hour, which is the rate now for a lot of these judges in L.A.,” Lyman said. “They’re incentivized to make things take longer and that’s not helpful for either party.”
Lyman said that divorce cases can be dragged out unnecessarily for years and take place unsuspectingly in a high-rise office building like a business deal.
“They’re going to make a divorce case protract indefinitely,” Lyman said. “Some cases are really bad where you have domestic violence involved. It’s tragic that vulnerable families fall into the hands of these unscrupulous attorneys.”
The highly-publicized Angelina Jolie and Brad Pitt divorce case involved a private judge and has been ongoing for more than five years.
In July of 2021, more than four years after Jolie and Pitt filed for divorce, the California Second District Court of Appeal ruled to disqualify Judge John Ouderkirk from serving as a private judge in the case for failure to disclose several potential conflicts of interest in matters involving Pitt's counsel in which Ouderkirk had been retained to serve as a private judge.
In that case, Justice John Segal wrote in his concurring opinion, “I write separately to express my concern that the following three propositions are currently the law in California. Temporary judges are judges; judges cannot be privately compensated; temporary judges can be privately compensated. One of these statements must be wrong.”
Unlike permanent judges, temporary judges operate in a context that greatly increases the likelihood of potential conflicts according to Justice Anthony Kline, First Appellate Court of California.
“Temporary judges have broad powers substantially comparable to those of a sitting judge but most who serve as temporary judges simultaneously maintain private law practices, as in this case,” Kline wrote in a previous appeal decision similar to the Jolie-Pitt case. “Consequently, these judges commonly engage in continuing business relationships with lawyers likely to come before the court to which they are appointed. Yet the California Rules of Court currently allow temporary judges to receive compensation from parties who appear before them, even though temporary judges are, well, judges.”
In 1992, Judge James T. Ford of the Sacramento County Superior Court wrote that privately compensating temporary judges was probably criminal.
"Penal Code section 94 bars judicial officers from accepting gratuities for performing public acts. Private judges have identical powers as sitting judges, and their decisions are those of the court without any further intervention by sitting judges. Accordingly, they must be deemed judicial officers within the meaning of the section," Ford wrote.
Judge Ford also wrote that privately compensating temporary judges was unethical under the California Code of Judicial Ethics.
"While not adopted with this recent phenomenon in mind, the Code stands for an important principle, justice and money do not mix,” Ford wrote.
According to Lyman, it was in the early 1990s that the Judicial Council created these rules to help create private judging.
To make private judging legal, the California Legislature added the following sentence to Penal Code in 1993; The lawful compensation of a temporary judge shall be prescribed by Judicial Council rule. Compensation for temporary judges can be read to prohibit judicial officers, including temporary judges, from collecting a fee for their official services without specific statutory authorization. A judicial officer who violates this prohibition is guilty of a misdemeanor.
Legislation passed in 1994 provides that it will be lawful for a temporary judge to be compensated according to prescribed Judicial Council rule.
The current version of the rule does not take a position on the propriety of privately compensating a temporary judge or even requires the parties to contribute equally to the temporary judge's compensation. The rule provides that a temporary judge may not be privately compensated by the parties unless they agree in writing on the rate of compensation according to Lyman.
“But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea,” Justice Segal wrote.
The practice of private judging is widespread as a recent case, Chodosh v Saunders highlights.
In that civil case, several senior citizens and veterans lost their homes in a mobile home park after mediation with JAMS co-founder Jack Trotter.
The case is now headed to the United States Supreme Court.
Family Legal reported that a Supreme Court petition for certiorari was filed last week in Chodosh v. Saunders, arguing the Ninth Circuit departed from its precedent and split from other circuits to hold the Rooker-Feldman doctrine’s “fraud on the court” exception does not apply to judges engaged in judicial corruption in state court proceedings.
Chodosh v. Saunders argues that it should be settled law that state judiciary involvement in bribery and conspiracy constitutes fraud on the court and a denial of procedural due process.
“Ninth Circuit precedent is that judges that conspire and act for litigants to subvert judicial integrity are part of a fraud on the court. The decision, in this case, transgresses Ninth Circuit law that fraud on the court includes fraud by an officer of the court,” the petition said.
This is part of an ongoing report on the use of private judges in California's divorce and civil legal proceedings.