Sunday, November 25, 2007

Golin v. Allenby : Judge J. Michael Byrne and the Twilight of Progressivism

I have recently blogged about Golin v. Allenby (and here). Today, Napa County's Judge J. Michael Byrne has declared that the Golins are "vexatious litigants" and barred them from further action unless they put up a $500,000 bond because they are suing to get their autistic daughter back from state officials who may have allowed her to be raped. Moreover, the Golins’ names are to be put in a statewide registry for seven years that among other things prevents them from any further advocacy on behalf of their daughter.

The Golin v. Allenby case is a good illustration of why Progressivism and the New Deal, the two movements that created today's liberalism, have failed. Progressivism aimed to increase democracy by expanding the power of government. Its successor ideology, the New Deal, aimed to bestow even greater power on government bureaucracies, enabling them to harass, control and harm individual citizens. The Golins are a signal example of why the public has rejected progressive-liberalism.

There are allegations that Judge J. Michael Byrne has colluded with the California State Attorney General, Jerry Brown, to attempt to deflect a multi-million dollar lawsuit against Santa Clara County for its kidnapping and abuse of Nancy Golin.

The Golins urgently need local representation in California for their civil suit. The following release, which I have just received, offers but one more example of the tyrannical essence of progressive-New Deal-liberalism.

Santa Clara County Superior Court No. 1-07-CV-082826
(Updated November 24, 2007)

"In thousands of documented cases across the country, the standing of a caring relative or committed advocate to represent the interests of the ward may be challenged by a defendant, as part of a defense strategy that almost invariably proves successful .

"Once the defense removes the family member, the ward is helpless, because no one other than the alleged wrongdoer can supposedly represent the ward. And a reasonable person never sues himself.

"Latest Update –San Jose, California, November 20, 2007. An assigned retired superior court judge from Napa County has just declared the Golins to be “vexatious litigants”. Judge J. Michael Byrne, assigned by Chief Justice Ronald George to sit in their case traveling 100 miles from the San Jose Courthouse for only 30 days, granted the State defendants’ motion barring the Golins from ever again proceeding with their case unless they put up a $500,000 security bond within 10 days. In doing so, Judge Byrne ignored each and every one of the narrow definitions provided in necessary statutory criterion, intended to prevent misuse of the law to prevent truly meritorious lawsuits from proceeding. The state and local defendants were represented in part by the State Attorney General’s Office headed by recently elected Jerry Brown, Santa Clara County Counsel’s Office and City of Palo Alto outside counsel Scott Pinsky. This places the Golins’ names in a statewide registry for seven years that among other things prevents them from any further advocacy on behalf of their daughter.

"This nuclear option in California law is ordinarily never used except in the most extreme circumstances to protect the courts from abuse, where an unrepresented litigant obsessively files dozens or hundreds of meritless lawsuits which are finally decided against them, often with the same allegations or against the same parties, in order to harass, punish or intimidate their victims into settlement. Alternatively, if an unrepresented litigant repetitively files meritless motions in a lawsuit, this law may be applied, but the motions or oppositions must be genuinely meritless and the case must be judged to have no likelihood of prevailing on the merits.

"Clearly that is not what is happening here. The Golins are representing by two prominent attorneys, including David J. Beauvais of Oakland. The lawsuit is the only one they have filed in at least 10 years. They have never before been determined to be “vexatious litigants”. Neither of their pro bono attorneys believes that the Golins’ case lacks merit, or is being pursued for purposes of delay or harassment of the defendants, and it would not be reasonable that they would waste their precious legal talents working for free on a meritless case. The state defendants argued to Judge Byrne that the Golins are not “really” being represented, because Mr. Golin is personally assisting in his case from his six years of firsthand personal knowledge of the facts and law. If brought before a jury, they believe that the Golins case would result in a damages award in at least the seven figures, and that is the problem for the defendants. After they filed their objections to the lawsuit’s legal bases, the Golins filed oppositions that should under any standard defeat their objections and allow them to try their case, reaching discovery and trial. The pretext that the Golins motions and countermotions are frivolous is pretextual, because the defendants clearly know they are not, and that is what scares the state into this radical defense posture. The state attorney general’s motives in desperately covering up the defendants’ criminal liabilities in this case are still open to speculation.

"Judge Byrne asked the defendants at one point to know which of the Golins’ motions they were calling meritless or frivolous. Yet after the defendants failed to do more than cite the caption of one of the plaintiffs’ best motions, complaining that the Golins were “driving them crazy”, Judge Byrne granted the vexatious litigant motion anyway. The Golins observed it would have been simpleminded for Judge Byrne to merely reach the motions and counter motions themselves in one more hearing to see what they contained, but apparently that was what the state sought to avoid at all costs.

"Mr. Beauvais stated that, in his view as a veteran trial attorney for 25 years, the decision represents a gross miscarriage of justice, because no one can now represent Nancy Golin except the state, which has abused her. The Golins are complaining of total denial of their Constitutional due process rights under the 5th and 14th Amendments for themselves but especially for Nancy. They argue that the state’s method for choosing appointed judges when no other judge in the court is available to act invites abuse by allowing the attorney general to very easily judge-shop for a compliant or corrupt judicial officer, dangerously thinning the firewall between the judicial and executive branches.

"The History

"On November 15, 2001, 31-year-old Nancy Golin was taken by Palo Alto, California police from her family, never again to return. Up to then, she had depended on her parents, Jeff and Elsie Golin, to protect her. They had unhesitatingly undertaken the task of raising their autistic child at home since birth, with love and quality care. Nancy’s parents had fought against California agencies they saw as irresponsible, uncaring and incompetent, after attempting for years without success to obtain appropriate school services . Their efforts had won them the admiration of many in their local community.

"This whole incident began when Nancy wandered away as is her habit and her parents reported her missing, but upon her independent return to her parents’ home, the police requested that she be taken to a medical facility for examination to insure that nothing had happened during her absence. Yet when the Golin’s tried to reach Nancy, the nightmare began, with a series of clearly illegal confinements. Police had taken Nancy to the nearby Stanford psychiatric ward on a ruse, without warrant, emergency or probable cause, and attempted to involuntarily institutionalize her . When the grounds were legally rejected and they could show no probable cause, they chose instead to “place” her in a group home at a secret destination chosen by the local Regional Center, San Andreas (SARC) and Adult Protective Services (APS), via a forged signature to her IPP constituting “consent” to institutionalization .
To cover up their mistake and to squelch press reports , the San Andreas Regional Center (SARC) and Adult Protective Services (APS) appealed to the Santa Clara County DA to trump up malicious abuse charges the parents, Jeff and Elsie, who were falsely arrested, and spent a night in jail facing felony charges. The local police produced a falsified police report which was immediately discounted by Nancy’s doctors and the parents’ supporters . It took 14 months for Jeff and Elsie to get the district attorney to drop and expunge the charges. Meanwhile, State attorneys from the Department of Developmental Services (DDS) pursued Nancy’s conservatorship by DDS Director Allenby and SARC, proceeding at first in secret , and then opposing the parents own petition in a David versus Goliath mismatched 2003 probate trial (which did not address the illegalities of the removal and confinement). The parents attempt to appeal was thwarted by procedural barriers caused by their inability to procure a complete record of the trial.

"Since her confinement, Nancy has suffered numerous physical and neurological injuries and abuses. She has lost the use of her hands, been hospitalized dozens of times for seizures and esophageal ruptures, five years of dental neglect causing her to lose almost half her teeth, been improperly subjected to destructive psychiatric drugging, and likely molestation. SARC reports to doctors she now has cerebral palsy. Recent evidence has surfaced concerning terrible abuses she suffered at the hands of the state conservators that were concealed before her conservatorship trial and did not come to light. All of these injuries occurred while in SARC’s and APS’s care. Not the least of the harms, she is not allowed to see her parents except under extreme restrictions and she is not being allowed to go back home for reasons she cannot understand and no one purports to explain. The parents have thus far been denied any say in her care or standing to litigate on her behalf.

"The state civil lawsuit

"Jeff and Elsie filed timely tort claims and a §1983 civil lawsuit for damages in Federal District Court in 2003 . They were unable to overcome the lack of counsel for next friend standing. Federal law mandates that parents need an attorney of record in order to have legal standing as “next friend” of the adult child. The case then wound its way through the federal courts from refilling of their state claims in Sacramento into their present state court proceeding in Santa Clara County, where they have been interim representation provided pro bono by New York attorney Gerard W. Wallace of Albany Law School, just recently joined by Oakland civil rights attorney David J. Beauvais.

"The parents are suing Mr. Allenby of DDS, several County of Santa Clara defendants (including APS, the DA, and the public defender), several SARC defendants, the City of Palo Alto, Stanford Hospitals and Clinics, the care home operator, and others. Their 17 causes of action include both claims on their own behalf and on behalf of Nancy. They are claiming constitutional violations under 1st, 4th, 5th, 6th, 8th, and 14th amendments, Section 1983 civil rights and ADA, as well as state tort claims including attorney and medical malpractice, personal injury, slander, emotional distress, and malicious prosecution. The parents are seeking general, compensatory, exemplary, and punitive damages. The parents’ statutes of limitations have not yet accrued. All parties have been served and all but three defendants have filed demurrers and answers .

"In California, well-established authorities entitle the parents to represent their daughter in litigation as guardians ad litem (GAL), because the conservators are defendants and thus have conflicts of interest . The defendants dispute those theories.

"The focus of SARC’s and County’s intent appears to revolve around their interest in covering up abuse by opposing and denying discovery rights by relying on the (flawed) theory that conservatorship creates a monopoly of legal standing . This theory, unsupported by any legal authority, which the Golin’s lawsuit challenges, leads to the absurd conclusion that no one other than the conservator may sue the conservator. Without expressly claiming it, SARC has thus far garnered absolute protection from liability. The parents’ desire for their daughter’s return is paramount, but they perceive that due to local judicial entanglement this will never be possible as long as SARC perceives the loss of their conservatorship as representing a liability threat.

"The state civil lawsuit – UPDATED 9/24/07

"The parents experienced severe bias in Santa Clara County Superior court due to the influence, power and entrenchment of Santa Clara officials due to their misconduct in this case, and judicial entanglement with these parties. The parents fought to keep the civil case in Sacramento last year, alleging impossibility of a fair trial in Santa Clara County, but the Sacramento judge simply did not accept their allegations as proving sufficient bias to resist County of Santa Clara’s motion to change venue to their home turf. Events since then have resoundingly vindicated their allegations of suspected bias in Santa Clara County. Mrs. Golin, who was appointed guardian ad litem to represent their daughter, was removed as soon as the case was moved to Santa Clara County, and the County has done everything in their power to resist appointing anyone else. To date, four judges have been challenged for cause, and two of them have recused themselves in response. One of the defendants in the case, who worked for County Counsel’s office was sworn in as a judge, necessitating the recusal of the entire Santa Clara County bench. A judge assigned by the judicial counsel, Judge Breen, was appointed from another county to sit in Santa Clara, over the plaintiffs’ objections, and he has now recused himself, too, after a showing of prima facie bias and challenge for cause. As things stand, the parents are trying desperately to get the case transferred back out of Santa Clara County, because they are being denied due process there; there is no judge of the court to grant discovery motions, no judge to appoint a guardian ad litem, no judge for emergency ex parte motions, and the Court has closed ranks against the Golins. Theoretically, Judge Breen was supposed to be able to grant any motions himself, but he has not been available to do so and would only come to court on scheduled motions days, and refused to go through with the appointment of a guardian ad litem for Nancy.

"On September 21, 2004, the defendants were poised to get Judge Breen to steamroll through all their demurrer motions without a guardian ad litem on the theory that Nancy had no standing to bring her claims, but Judge Breen recused himself instead, sympathizing openly with the defendants. Mr. Beauvais appeared for the second time, and the case was rescheduled for November 5, when Mr. Beauvais had planned to be on vacation out of the country, over plaintiffs’ objections. Mr. Beauvais was prepared to argue the case, having studied the defendant’s demurrer motions and motions to strike the complaint and having found them to be frivolous. Mr. Beauvais has commented that this case has gone so far beyond the normal course of events to protect the County and other defendants it is almost impossible to believe. Meanwhile the parents are moving to get the case transferred again to a nearby county, and awaiting the appointment of another judge to petition for removal to. The parents are seeking ways to fight the official corruption that has become all too openly apparent, in order to gain their due process rights for themselves and Nancy.

"Pending United States Supreme Court Petition for Certiorari
During the California proceeding, the parents petitioned the US Supreme Court on Certiorari, to settle the question of who has standing to select Nancy’s GAL, the plaintiffs or the defendants? Nancy is a plaintiff . We have an adversarial system of justice. No authority has been found to suggest that a defendant can play any part whatever in the selection of a plaintiff’s representative. The defendants’ inherent conflict of interest is inescapable. Yet the absurdity of a defendant nominated GAL is exactly what the state courts have been entertaining. This absurdity went as far as the state court recently attempting to appoint one of SARC’s own attorneys as Nancy’s GAL. This attorney was cited four times in the complaint as spearheading the effort to conserve Nancy and attack her parents. The attempted appointment failed because the parents were able to announce in open court their objections and the reasons that the proposed appointee had a overwhelming conflict of interest.

"Nancy’s mother, Elsie, now armed with legal representation, was appointed as Nancy’s GAL twice in a normal ex parte appointment proceeding. Yet twice the defendants have rushed into ex parte proceedings to remove her, on the grounds that Elsie supposedly has an unspecified conflict of interest with her daughter and asserting a non-judicial right to be noticed and a hearing to object, claiming that the normal ex parte procedure constitutes a “subterfuge” without notice to them, which is clearly an error at law. If this were left to stand, a defendant could dismiss a plaintiffs’ guardian ad litem any time during the proceeding they were upset with the plaintiffs’ actions in litigation. The reason the emergency was felt to remove her was that Mrs. Golin was seen using her powers to discover evidence of abuse against Nancy. SARC pretextually maintains that it is in Nancy’s interest to stay in SARC’s control and that they are the sole decider of her interests. Thus, SARC alleges, Elsie has a supposed conflict of interest with her daughter. As Nancy’s lifelong caregiver Elsie is certainly legally qualified to speak on behalf of Nancy’ interests, having a long-standing significant relationship.
As cause, SARC declares that it fears that discovery by Mrs. Golin would potentially disclose abuses that might cause them to lose their conservatorship, saying that SARC apparently knows something that they feel is much too damaging to be disclosed , which would seem to be a self-incriminating defense demanding investigation, not cover-up. The probate court has supported this concealment so far.

"The parents are hoping that the Supreme Court will step in and settle this question. The matter is calendared for conference on September 24th . What is needed at this point is institutional support and publicity for our cause, which if left to stand will affect untold numbers of disabled persons. So far the mainstream media has ignored this case. The parents need help changing that, to help the Court focus attention on this.

"Critical Issues at Stake in Elder Law

"One critic of probate abuse has recently referred to a “white collar crime wave” involving handicapped persons in involuntary conservatorships, due to lack of effective court oversight, and due to the so-far undefeatable tactic of such defendants to smear anyone, whether family or friends, that attempts to intervene to rescue their loved ones from what would otherwise be considered kidnapping, abuse and false imprisonment .

"In each of these thousands of documented cases across the country, the standing of a caring relative or committed advocate to represent the interests of the ward is attacked as a defense strategy . Once the defense succeeds at removing the family member, the ward is helpless, because no one other than the alleged wrongdoer can represent the ward. And a reasonable person never sues himself. Thus, the ward is left with no rights at all.

"As a counter and check to such abuses, a precedent that controls such advocates rights to act as GAL’s in civil proceedings, which may in some cases be the ward’s only way out, would be very helpful . It affords a measure of heightened due process and damages that are not available in probate courts, and allows interested parties to participate that would otherwise be excluded. Authority is available under Title II of the ADA for “parties aggrieved” to afford independently enforceable standing to parents or relatives to litigate on behalf of their incapacitated family members, which follows the example set by the recent Winkelman v. Parma City, 127 S.Ct. 1994 (May 15, 2007) Supreme Court opinion for IDEA cases.

"Important Issues

"Issue #1: Does a defendant ever have standing to object to the plaintiff’s choice of guardian ad litem.
"Issue #2: Do parents with ADA claims have standing to sue as “parties aggrieved” on behalf of their developmentally disabled child notwithstanding that the child has been appointed a conservator, when the conservator has a conflict of interest by virtue of being named a defendant.
"Issue #3: How can a conservatee ever find their way out of the conservatorship without civil relief by interested parties, given that the state attacks the credibility of anyone that attempts to represent them?
"Issue #4. Does it make sense to provide relief to disabled adults under the ADA without allowing anyone to advocate for that relief, given that they are handicapped?

"What Do the Parents Need?

"The parents urgently need local representation in California for their civil suit. Mr. Wallace cannot continue to represent their interests from New York. He is filling in while permanent local counsel can be obtained. If even half their claims are supported, attorneys have opined that the damages awards would be very considerable, especially if submitted to a jury.

"Finding private counsel that would take the case on a contingent fee basis is feasible. It is only a matter of paying costs, and the parents have lined up a couple of interested attorneys. But law firms with pro bono projects which would usually be expected to have an interest, have not been receptive thus far. After 6 years of litigation, the parents have limited resources, but can pay incremental fees as needed.

"The parents are committed and knowledgeable about their case. Jeff Golin is sufficiently self educated in the law as to present a formidable adversary during pro se hearings. The parents’ rights continue to be infringed. Their visits with Nancy resemble jail visits more than family occasions . Nancy cannot understand why this is being done to her by her own parents. She appears more and more abused each time the parents see her.

"If the parents fail, Nancy will face a lifetime of false imprisonment and abuse without any available relief, truly a “creature of the state” as decried in the US Supreme Court decision, Parham v. JR, 442 U.S. 584, 602 (1979). This is not only a bad outcome for Nancy, but sets an extremely dangerous statist precedent for the country as well.

"It is unknown if the parents could renew their fight in federal court now that they have representation. The first round of federal litigation did not reach the question of prejudice, or lack of it. Many if not most of the federal exceptions, abstention doctrines and preclusion issues that kept the parents out of court the first time have in the meantime been settled by the U.S. Supreme Court in the parents’ favor. According to the doctrine of pendent jurisdiction, all the state claims that were being considered in federal court are relegated to the state court, and can be refiled under 29 U.S.C §1367, which has been employed here.
For more information please call Mr. Gerard Wallace (518) 445-3266, David J. Beauvais (510) 832-3605, or Jeffrey Golin (650) 518-2850.

1 comment:

Raven West said...

Jeff Golin's tragic case against the state is only one of the over 250 guardianship abuse victims who are members of the National Association to Stop Guardian Abuse, an organization I formed in May of 2006 after my father Ruby Cohen, from Ellenville, was victimized by a Florida guardian who wiped out nearly his entire life savings in just under 18 months.

The court system in this country was suppose to protect our most vulnerable citizens, but in more and more instances, the cards are stacked against the families and the innocent suffer.

The Golin's have had their daughter ripped from their loving home and thrown into hell by a heartless government. They have been threatened and abused by the system, as have a great many in this "land of the free".

Please visit our website at for information on Nancy Golin and the other victims.

Robin C. Westmiller, J.D.