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Time to Revisit "Gender Fairness" in the Courts

by William McGaughey

 

Many citizens of Minnesota are hurting because of abusive decisions by the courts. The democratic system of government seems unable, or unwilling, to deal with such problems. The judges are too often a law unto themselves. While Minnesota judges are elected, most run unopposed; and the voters have only a faint idea of their record. Something needs to be done to control judicially inflicted injuries.

Having just been through a long and difficult divorce, I would like to focus on practices in Family Court. My case was adjudicated by the chief judge of the largest county in Minnesota. Since there were no joint children, property division was the issue in this trial. We had a large marital debt ($325,000), far outweighing marital assets ($115,000). State statute requires trial-court judges to make a “fair and equitable” division of the marital property - in this case, debts. This judge, however, ordered me to assume virtually all of the debt. He also ordered me to pay $500 a month in permanent alimony; and when I filed a motion to eliminate this on the basis of sharply increased expenses, he increased the amount to $600. Third, the judge ordered me to pay $50,000 on two months’ notice. I had few liquid assets and my credit was exhausted. But I did have some non-marital real estate that could be sold. The judge even told me which property I should sell.

In all three areas of property division, the judge was ignoring statute. He frankly admitted that he was using his judicial “discretion” to depart from written law. As a self-represented litigant in disfavor with the judge, I appealed to the Minnesota Court of Appeals. In two of the three areas, the appellate-court judges ruled that, although another judge might have decided the case differently, it was within this judge’s discretion to rule as he did because he had touched the required bases in his findings. In the third area - the invasion of non-marital property - the court ruled that the trial-court judge had abused his discretion and reversed the decision. It was a life saver for me.

If I attempted to tell all the questionable decisions and remarks this judge made in his written decisions, readers would soon tire of it. People want to believe in their government. They want to believe that our judges are diligent and just. For the curious, however, I have, in fact, produced a 548-page (255,000 words) narrative of my experiences in divorce court and a companion piece (175,000 words) that contains 53 documents filed with the court. These appear on the internet at http://www.billmcgaughey.com/divorcecourt.html and http://www.billmcgaughey.com/divorcedocuments.html. There is also a listing of questionable activities by the judge and my wife's attorney at http://www.billmcgaughey.com/somehorrors.html. For quick reference to these and other documents, go to http://www.billmcgaughey.com/legalchallenges.html.

implications for public policy

Enough of my situation. I am still embroiled in court battles and will likely be for some time to come. What should be of greater concern here, though, is public policy. While individual personalities are at the root of the problem, there may be a way to restrain the destructive tendencies of abusive individuals if certain policies are changed. Despite the wide berth given judges, I look to the state legislature - the legitimate policy-setting branch of government - to make the appropriate corrections. The judiciary should not be given exclusive authority to police itself.

For a household of limited means, it was incredible that the property settlement in our divorce should have taken more than four years and required documents in excess of 500 pages. In my opinion, the two individuals who did the most to prolong the agony were my wife’s first attorney and the trial-court judge. The attorney consistently thwarted attempts to settle the divorce voluntarily. Her strategy, increasingly, was to churn paperwork to increase billable hours that she hoped the court would assign to me. For his part, the judge was an arrogant individual whose unreasonable rulings forced me to make appeals. Anyone masochistic enough to read through the entire narrative of bad experiences with this judge and the attorney at http://www.billmcgaughey.com/divorcecourt.html will know what I mean.

The demographic identity of the two parties, me and my former wife, may provide a clue as to the outcome. I am a white male who had lived in Minnesota for 50 years and was representing himself. My former wife was an Asian female who had lived in the United States for 10 years. She was aided by an Asian-female attorney and several Chinese-language interpreters. Could those personal attributes have influenced the judge’s thinking?

First, with respect to self-representation, I am mindful of the adage that a person who represents himself in court has a “fool for a client”. I, indeed, made mistakes as a self-represented party; but had my attorney not fired me for contacting the referee independently, I would have been financially unable to proceed. I had spent seven months and over $6,000 to no avail before I took over my own representation. The other attorney was churning emails and other senseless activity to run up billable hours. The fact that I, as a self-represented party, was able to convince the appellate-court judges to overturn the $50,000 award shows that this “client” was not entirely foolish. The court-appointed mediator had warned me that self-represented parties almost never win on appeal.

demographic considerations

A more critical distinction between the two parties was gender-based. Somehow my wife’s female identity worked to her advantage with this court. I do not think it a stretch to suggest that divorce courts in Minnesota generally favor the woman. Is it feminist politics or, perhaps, the individual preference of judges? My particular judge, it should be noted, was not an idiosyncratic person on the bench, but chief judge of Minnesota’s largest county court system. In other words, he probably was in tune with the general judicial thinking and had plenty of political “smarts” within the court system.

To give the argument a more general reference, the Minnesota judiciary undertook the project of ferreting out “gender bias” in the courts about fifteen years ago. Justice Rosalie Wahl led the task force appointed by the Minnesota Supreme Court. It became apparent, to me at least, that “gender fairness” in this case did not mean trying to be fair to both genders. What the task force members really meant by the phrase was slanting more court decisions in favor of the female.

With respect to areas of interest in my divorce, some of the Task Force findings and recommendations were the following;

Finding: “Spousal maintenance was awarded in only ten percent of Minnesota divorces in 1986 and permanent maintenance was awarded in less than one-half of one percent of cases sampled. When maintenance is awarded, it is rarely high enough to allow the economically dependent spouse to sustain the living standard maintained during the marriage. Judges seem to underestimate the difficulty women face when they re-enter the work force after a long period of absence, or to adequately respond to acknowledged differences in the earning capacities of men and women.”

The recommendations were: “1. Judicial education courses and continuing education courses for lawyers in family law should address spousal maintenance. These courses should contain: 1) information about the economic realities faced by women attempting to reenter the labor market after extended absences, including practical exercises dealing with spousal maintenance determinations; and 2. information emphasizing the need to make specific findings on all of the factors which state law requires courts to consider in awarding maintenance. 2. Courts should discontinue the use of the terms “rehabilitative” or “short-term” and adopt the term “maintenance” as standard usage.

The report also said: “Minnesota law requires that marital property be distributed equitably upon divorce. The Task Force found that, by and large, equitable distribution works well in the state, with courts usually achieving close to a 50-50 division of marital assets. However, the nature of the property division, with the wife usually receiving the home or non-liquid assets, and the husband receiving the majority of the liquid and income-producing assets, can create inequities.”

The recommendation was: “Judicial education programs should address the need for judges to divide marital property so that each of the parties retains some liquid and income-producing assets.”

With respect to domestic abuse, the report stated: “(T)he state (of Minnesota) has some of the nation’s most progressive domestic abuse statutes, backed by knowledgeable advocates in both the public and private sectors. In spite of these assets, the Task Force found compelling evidence that domestic abuse victims do not receive the civil or criminal relief which the statutes were intended to receive.”

Some recommendations were:

Judges, attorneys, court personnel and law enforcement officers should be sensitized to the problems of individuals who have been victims of domestic abuse.

2. The topic of domestic abuse and Orders for Protection - including information about the abuse dynamic and the dangers of victim blaming - should be addressed in judicial education programs.

9. State funding for the hiring and training of advocates should be increased.”

Such decisions of the Task Force belied the concept of “equal under the law”, which, as I interpret it, means that justice is blind to gender or other demographic differences. The Task Force recommendations were anything but blind or impartial. They were frankly trying to change court policy to get women a more favorable deal in family courts. Their agenda with respect to spousal maintenance, for instance, was to encourage courts to award permanent as opposed to temporary maintenance because it was unfair to ask former housewives to retrain for another job.

Fairness? Equality? Who are we kidding? The judge I had in my divorce was like a Gender Fairness Task Force member on steroids, assigning me virtually all our marital debt and awarding my wife (who had more recent work experience than I) permanent spousal maintenance and a share of my non-marital assets. I assume that he as a politically astute judge was thoroughly versed in what gender-based outcomes the Minnesota Supreme Court wanted.

It was interesting to see that, fifteen years after the “Gender Fairness” task force report, the idea of permanent spousal maintenance had become prevalent, whereas “in 1986 ... permanent maintenance was awarded in less than one-half of one percent of cases sampled.” While the task force acknowledged that a 50-50 split of marital property was ”equitable”, my particular judge was able to stick me with almost all of the marital debt and the appellate court found this lopsided distribution to be within an acceptable range of his discretion. So I think the Supreme Court task force had an impact. It sent a signal to ambitious judges that ruling in favor of the female was politically safe.

my own experience

In the two divorce trials in which I have been involved, I was aware of persistent personal attacks that seemed to influence the judge’s decision. Even though “marital misconduct” is not supposed to be a factor in property divisions, it was in mine. I cannot imagine that, had I attacked my wife as she had attacked me, the judge would have let me get away with such behavior. Instead, the attitude seemed to be: What did you do to your wife to make her hate you so much? My admittedly self-interested opinion is that I was relatively mild-mannered, and even indulgent, in my three marriages. Maybe women see something in me that I do not.

I also think that my wife’s Asian identity worked in her favor. I base this on my perception that politically aggressive minorities have intimidated the white majority in certain ways. And, Asians are deemed “model minorities”. My former wife and her attorney used the Chinese-language interpreters for their strategic advantage to the point of outright abuse, yet the judge did nothing to control their behavior. Why not? Was politics a factor? Minneapolis politicians can be kind to immigrants and minorities but quite heartless in dealing with the bulk of white people who live in our community.

lying

Now I turn to the other despicable character in my divorce saga: my wife’s first attorney. I fault her for putting obstacles in the path of a settlement and, even more so, for her breathtaking lack of integrity. Another word for this is “dishonest”. This attorney was peppering her documents with lies mostly directed at my character to which I had to respond. Not only did the court fail to discipline the attorney for what should be considered “unprofessional” conduct, she was rewarded with a lopsided settlement. I suppose this makes her a good attorney. If so, the court system is totally messed up.

Someone who takes the trouble of reading through the long narrative of my divorce will find many examples of lying by this attorney and her client. More useful for policy purposes than this, however, is the following reference to a 2008 article titled “Lying in Family Court” by Bill Eddy. Eddy had been a family law attorney and mediator. “ One of the biggest surprises, “ he wrote, “was the extent of lying in Family Court: lies about income, assets and even complete fabrications of child abuse and domestic violence. Why would people lie so much, I wondered? How did they get away with it?”

“Surveys show that lying has increased over the past decade. In 1999 alone: the President was tried in Congress for perjury; a popular journalist in Boston was publicly fired for fabricating heart-rending stories; and a scientist was exposed for falsifying research on a high-profile safety issue.

We have become a society of individuals. Personal gain is more important than community values. In this mobile ‘information age,’ we rely on strangers and are easily fooled. In business, politics, and the movies, winning is everything. Successful manipulation and deceit are admired. In court, lying is often rewarded and rarely punished.

Divorce Courts rely heavily on ‘he said, she said’ declarations, signed ‘under penalty of perjury.’ However, a computer search of family law cases published by the appellate courts shows only one appellate case in California involving a penalty for perjury: People v. Berry (1991) 230 Cal. App. 3d 1449. The penalty? Probation.

Perjury is a criminal offense, punishable by fine or jail time, but it must be prosecuted by the District Attorney -- who does not have the time. Family Court judges have the ability to sanction (fine) parties, but no time to truly determine that one party is lying. Instead, they may assume both parties are lying or just weigh their credibility. With no specific consequence, the risks of lying are low.

The adversarial process naturally encourages lying: winning is the goal, liars get equal time, and the most skillful adversary wins -- regardless of the truth.”

Yes, lying was the issue. I thought of the many lies I had to try to refute in letters by the other attorney sent to the court. I remember the referee’s clerk’s angry reaction when I responded to an email from that attorney falsely accusing me of various things. “A plague on both your houses!”, it seemed to say. The court doesn’t have time to investigate your petty accusations.

Yet, when I presented a motion for a new trial that exposed the various unseemly things that the judge and court officials had done, the judge responded with a memorandum saying that I had a “veracity” problem. (Because he used the word “veracity” rather than “lying”, I suppose he thought more people would believe him.) In my post-trial motions, I showed how the judge had presided over a disorderly trial. But, if lying is a problem in divorce proceedings, couldn’t the courts establish, say, a “veracity investigation department” with the resources to examine some of those false claims and then disbar or defrock the perpetrator if found guilty? A little more time and resources investigating the lies more consistently and completely might go a long way toward strengthening public confidence in judges and courts.

rein in the courts

As a legal amateur, I have some other thoughts about improving the judicial system besides cracking down on lies perpetrated by attorneys (and by judges in a few cases). Most important would be to rein in judicial discretion. If the courts themselves will not do something about this problem, then the state legislature should act. Trial-court judges should not be allowed to make decisions that defy common sense just because appellate courts have traditionally deferred to their judgment. I cannot recommend a particular remedy but am hopeful that something can be found.

Still another thought is that the pomp and circumstance surrounding the judiciary does not make for good decisions. In my case, the judge was obviously full of himself. He was too impressed with being a judge - chief judge, at that. To correct this problem, I recommend that a law be passed that Minnesota judges cannot wear black robes in court. They should instead wear ordinary business suits, like other professionals. Also, the language and procedures used in the courtroom need to be changed.

And, yes, something needs to be done about the legacy of the Minnesota Supreme Court Task Force on Gender Fairness in the Courts. Its recommendations should not be the basis of mandatory continuing-education courses for attorneys. This was an unwarranted policy grab by the judicial branch of government. It was also a policy that goes against the professed ideal of justice: Equal treatment under the law. Instead of this, Minnesota courts seem to be accepting the principle that certain groups of people deserve to be treated “more equally” than others. Shame on the courts for allowing politics to capture their domain.

This task force was dishonest from the start. Having had a bad experience in a previous divorce, I attended one of the public meetings at which Supreme Court justices and their associates received comments about the proposed task force and its work. In fact, I offered my own comments; and, afterwards, I published an opinion article about the event in the St. Paul Pioneer Press. My opinion article, published on January 22, 1990, was titled “Minnesota Courts Sex Bias Task Force tilted against Males.” It read:

“The Minnesota Supreme Court Task Force for Gender Fairness in the Courts, chaired by Justice Rosalie Wahl, found evidence of pervasive discrimination against women. Chief Justice Popovich said he was ‘shocked’ at the extent of the problem. Having attended two public hearings conducted by the task force and offered personal testimony, I was, for my part, disturbed by what appeared to be discriminatory treatment of witnesses by task force members as well as the one-sided nature of its final report, issued last fall.

I can readily believe that there is gender-based bias in Minnesota courts. I have seen this myself - in the ugly form directed against men - but would concede that women, too, may be its victims. For that reason, I welcomed the formation of a task force to study the problem, confident that such a body, assembled by the Supreme Court, would be scrupulously honest and impartial in gathering evidence.

reality of the task force

Such expectations were quickly dispelled at the hearing at which I participated in St. Paul. It did not appear that the testimony received from witnesses alleging anti-male bias was treated with the same respect and serious attention as the testimony received from witnesses alleging bias against women. The "playing field" appeared tilted. How so?

First, there were at this hearing, by my count, three times as many witnesses who testified from the perspective of bias against women as the other way around. Many appeared to represent women's advocacy and other institutional interests. When testimony began, the moderator announced that each witness would have 10 minutes to speak. By my observation, the first nine witnesses on the program all testified from the perspective of anti-female bias. Most of these earlier witnesses ran over their allotted time, some by five or more minutes.

The 10th witness, a woman representing ‘Our Kids’, was the first to tell of anti-male discrimination - quite eloquently, too, in my estimation. The moderator cut her off abruptly at the 10-minute mark, before she could finish her closing statement. When my turn came, the moderator greeted my appearance at the podium with the remark that, because time was running short, the remaining witnesses would have only five minutes to speak. The witnesses alleging anti-male bias were bunched in this group.

Furthermore, the moderator allowed the testimony of the earlier witnesses to proceed smoothly and without interruption, while the later witnesses - with less time - were frequently interrupted. Once the moderator objected that a part of my testimony was ‘hearsay,’ suggesting that the task force disregard it.

The last witness began his remarks by observing that members of the task force had been conspicuously inattentive to the testimony from previous witnesses complaining of anti-male bias. Some members appeared to be dozing. Others showed obvious boredom. I personally observed several task force members winking and grimacing at each other in open disbelief while a representative of the Men's Rights Association was speaking.

Such, then, are my recollections of that evening, months ago, when the Supreme Court task force began its work. When the final report was issued, I was curious to see how the testimony would be handled.

I must say, the report itself was visually quite impressive. What was lacking was any trace of the kind of testimony I remember giving or hearing. Apart from certain issues relating to child custody, the task force was apparently unwilling to acknowledge the existence of anti-male bias. It is not that our testimony was distorted; the testimony simply did not show up in the report.

The report, instead, was filled with an overwhelming mass of evidence to show that women are being systematically discriminated against in Minnesota courts. Much of the evidence was anecdotal; some, quite colorful. Even where the report purported to be evenhanded, the manner of reporting made it clear where the reader's sympathies ought to lie.

For example, the report quoted a police officer's comment that ‘the problem with battered women is that their alligator mouths can't keep up with their hummingbird brains.’ The men's side of the argument was stated: ‘A number of attorneys, primarily male,... suggested that women are crafty schemers who use the proceeding to punish men...‘

It was reporting such as this, accompanied by the unbalanced conclusions, that led me to believe the task force report was essentially a political document, designed to please ideologically dominant groups. It is unfortunate that the courts should be politicized to this extent, especially when court cases pertaining to divorce and other gender matters involve such intensely painful experiences for many people.”

I recall receiving a letter from Justice Wahl challenging my facts. When I substantiated them, I never heard from her again. However, the St. Paul Pioneer Press did publish a letter to the editor from a local feminist several days later, which began: “ Some of us are absolutely amazed that you would seriously publish the misogynist rantings of William McGaughey Jr. in a "Viewpoint" column [Jan. 22.] Yes, as Mr. McGaughey says, the final report of the Minnesota Supreme Court Task Force for Gender Fairness in the Courts was one-sided. That's because one side - female - has been left out of the courts, underrepresented in the courts, discriminated against in the courts.”

Feeling an urge to “rant” now, I think it best to end this article without delay.

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