Unusual twist takes a divorce case that was sent back to California from Ohio Supreme Court to Supreme Court raising Constitutional issues related to judicial disqualication. 
United States of America (Press Release) November 15, 2007 --
In an unusual twist an Orange County divorce case, which has already made its’ way through the Ohio Supreme Court, is now before the California Supreme Court. This time the question is a constitutional issue that may have more implications for criminal defendants and self-represented litigants than couples in divorce court.
The California Supreme Court Justices will be facing a decision about whether to hear a Petition for Review from Jeffrey Barth, an Orange County resident, who sought the disqualification of Orange County Superior Court Commissioner Thomas H. Schulte. However, the issue before the Supreme Court is much broader than whether or not Commissioner Schulte should be disqualified.
Initially, Commissioner Schulte declined to assert California jurisdiction and sent the case to Ohio. Mrs. Barth had taken the couples children to Las Vegas, Nevada and then flew to Florida and ultimately Ohio in an effort to keep custody of her children and avoid California jurisdiction. Last May the Ohio Supreme Court decided that Ohio did not have jurisdiction and the matter really belonged in California.
Commissioner Schulte continued to question his own jurisdiction and authority over the case. He openly criticized and questioned the Ohio Supreme Court’s decision and made a number of other unusual and bazaar comments in open court. A number of observers advised Mr. Barth that Commissioner Schulte’s attitude and rulings appeared to be biased.
Therefore Mr. Barth, who represents himself, attempted to have the Judge disqualified and a new Judge assigned to the case. A “Statement of Disqualification” outlining the reasons that Commissioner Schulte should be disqualified was filed. The disqualification statement included evidence from various court transcripts and an affidavit asserting specific facts which warrant disqualification.
Normally when a statement of disqualification is filed the matter is referred to an independent judge who determines whether or not the judge should in fact be disqualified. However that did not happen in this case. Commissioner Schulte utilized a unique provision in California law to decide for himself whether or not the complaint against him had merit. He decided it did not requiring the case to proceed.
This forced Mr. Barth into a tough position, continue a case with a Judge who appears biased against you and against whom you've made your opinion known or seek a lengthy and costly appeal. Mr. Barth researched the law, case histories, and the legislative history of the provision in the statute which the Commissioner used against him and discovered an interesting twist.
Mr. Barth discovered that the law which Commissioner Schulte used against him, California Code of Civil Procedure 170.4(b), was not in the original bill which the State Bar Committee on the Administration of Justice proposed. During the legislative process the California Judges Association requested the provision be put in because “criminal defendants often raised frivolous and untimely disqualification challenges which slowed down the administration of justice”.
Mr. Barth uncovered a letter in the Legislative Archives from Senator Keene to then Governor Deukmejiah which clearly states the reason this provision was put into the law was to stop criminal defendants who represent themselves from raising these disqualification challenges. He also uncovered other memorandums from the legislative archives indicating the motive behind the law.
If the Supreme Court decides to hear the case they will not only determine whether or not Commissioner Schulte is impartial and can offer a fair trial – but they will also likely determine whether or not the Legislature can write laws that make it more difficult for criminal defendants, and self-represented litigants, to disqualify a judge.
The California Supreme Court Justices will be facing a decision about whether to hear a Petition for Review from Jeffrey Barth, an Orange County resident, who sought the disqualification of Orange County Superior Court Commissioner Thomas H. Schulte. However, the issue before the Supreme Court is much broader than whether or not Commissioner Schulte should be disqualified.
Initially, Commissioner Schulte declined to assert California jurisdiction and sent the case to Ohio. Mrs. Barth had taken the couples children to Las Vegas, Nevada and then flew to Florida and ultimately Ohio in an effort to keep custody of her children and avoid California jurisdiction. Last May the Ohio Supreme Court decided that Ohio did not have jurisdiction and the matter really belonged in California.
Commissioner Schulte continued to question his own jurisdiction and authority over the case. He openly criticized and questioned the Ohio Supreme Court’s decision and made a number of other unusual and bazaar comments in open court. A number of observers advised Mr. Barth that Commissioner Schulte’s attitude and rulings appeared to be biased.
Therefore Mr. Barth, who represents himself, attempted to have the Judge disqualified and a new Judge assigned to the case. A “Statement of Disqualification” outlining the reasons that Commissioner Schulte should be disqualified was filed. The disqualification statement included evidence from various court transcripts and an affidavit asserting specific facts which warrant disqualification.
Normally when a statement of disqualification is filed the matter is referred to an independent judge who determines whether or not the judge should in fact be disqualified. However that did not happen in this case. Commissioner Schulte utilized a unique provision in California law to decide for himself whether or not the complaint against him had merit. He decided it did not requiring the case to proceed.
This forced Mr. Barth into a tough position, continue a case with a Judge who appears biased against you and against whom you've made your opinion known or seek a lengthy and costly appeal. Mr. Barth researched the law, case histories, and the legislative history of the provision in the statute which the Commissioner used against him and discovered an interesting twist.
Mr. Barth discovered that the law which Commissioner Schulte used against him, California Code of Civil Procedure 170.4(b), was not in the original bill which the State Bar Committee on the Administration of Justice proposed. During the legislative process the California Judges Association requested the provision be put in because “criminal defendants often raised frivolous and untimely disqualification challenges which slowed down the administration of justice”.
Mr. Barth uncovered a letter in the Legislative Archives from Senator Keene to then Governor Deukmejiah which clearly states the reason this provision was put into the law was to stop criminal defendants who represent themselves from raising these disqualification challenges. He also uncovered other memorandums from the legislative archives indicating the motive behind the law.
If the Supreme Court decides to hear the case they will not only determine whether or not Commissioner Schulte is impartial and can offer a fair trial – but they will also likely determine whether or not the Legislature can write laws that make it more difficult for criminal defendants, and self-represented litigants, to disqualify a judge.
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