6th District Justice Conrad Rushing Issues Sham Order for Divorce Lawyer Garrett Dailey: Indigent Pro Per Denied Right To Appeal

Justice Conrad Rushing

In an unsettling example of judge and attorney misconduct, indigent, self-represented Santa Clara County family court victim Catherine Raffa attempted to appeal a trial court order declaring her a vexatious litigant. Raffa successfully filed the appeal, # H043207, in the 6th District Court of Appeal in San Jose.

Earlier this year, the opposing attorney, veteran family law lawyer Garrett Dailey, filed a motion to dismiss the appeal because, he claimed, Raffa was a vexatious litigant and required to get permission "from the presiding justice permitting the appeal to proceed."

But a litigant appealing a vexatious litigant order issued by a trial court doesn't need permission to appeal the order. If they lose the appeal, thereafter they need permission from a presiding judge to file anything in any court. They don't need permission to appeal the initial VL order, according to both case law and statutory law, CCP § 904.1(a)(6).

Instead of reporting the attorney to the State Bar - as required by Judicial Ethics Code § 3D(2) - for not knowing the law, filing a frivolous motion, and attempting to deceive the court, the PRESIDING Judge of the 6th District Court of Appeal GRANTED the motion on Oct 18.

Presiding Justice Conrad Rushing issued an order requiring Raffa to "seek permission from this court to file new litigation as a vexatious litigant, with the appropriate showing. Appellant is advised that failure to seek permission shall result in the dismissal of her appeal."

FCAC blog readers familiar with the misuse of vexatious litigant law in divorce cases by attorneys and judges as a method of punishment against the poor who cannot afford an attorney will also know that permission to file litigation as a vexatious litigant is virtually impossible to obtain.

But today, Catherine Raffa stood up for her rights and filed the response linked below. She did not ask for "permission" to exercise her state constitutional right to appeal the vexatious litigant order. The response includes exhibits, which are copies of the applicable law that the presiding judge and attorney apparently are unfamiliar with. Pages 1-6.

The sham order issued by Justice Conrad Rushing also is included (page 7), as is the sham motion by prominent family law attorney Garrett Dailey (pages 8-10).

Rushing was appointed by Governor Gray Davis to the 6th District Court of Appeal in 2002. Before that, he was a Santa Clara County Superior Court Judge since 1978, appointed then by Governor Jerry Brown. From 1971-1978 he was in private practice. Rushing is a 1963 graduate of the University of California, Berkley, School of Law. 

"A San Jose Mercury News investigation published in 2006 found questionable conduct in one in three criminal jury trials in Santa Clara County. Yet the 6th District overturned only one out of 20 convictions. The newspaper found more than 50 cases where the court 'misstated facts, twisted logic and devised questionable rationales to dismiss the error," according to the Daily Journal profile of Justice Rushing.  

Court reform advocates assert the Rushing-Dailey collusion in the Raffa case reflects how California courts, and the "officers" of those courts routinely treat the poor who cannot afford attorneys and are forced to represent themselves in court.

Whistleblowers charge that Rushing's unpunished misconduct in the Raffa case is additional evidence that California court of appeal and Supreme Court judges effectively have been granted immunity from accountability for violations of the Judicial Ethics Code by the Commission on Judicial Performance, and CJP Director Victoria Henley. 

Credit: Commission on Judicial Performance Reform Project.