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While sympathetic with the heavy caseloads borne by family courts statewide, the California Supreme Court on Monday nonetheless voided a controversial Contra Costa County rule aimed at streamlining court proceedings. “That a procedure is efficient and moves cases through the system is admirable,” Chief Justice Ronald George wrote for a unanimous panel, “but even more important is for the courts to provide fair and accessible justice.” George recommended in a footnote that the state’s Judicial Council establish a task force to investigate how to help family courts run more efficiently while maintaining access to justice for their litigants, most of whom are pro per. At issue in Monday’s opinion was the Contra Costa County Superior Court’s Local Rule 12.5(b)(3), which was adopted in 2005 to reduce delay and minimize conflict between opposing parties in family court. It authorizes judges to reject documents not made available five calendar days before a hearing, and requires all exhibits to be enclosed in binders with explanatory declarations attached. Most troubling to critics, though, was the requirement that limited testimony to written declarations, while allowing the trial judge discretion to take direct oral testimony only in unusual cases. Jeffrey Elkins, representing himself, challenged the rule in 2005 after Superior Court Judge Barry Baskin invoked it to reject all but two of the 36 exhibits Elkins wanted to present during a divorce proceeding with his wife Marilyn. He argued that by severely limiting his documentation and simultaneously not letting him testify, the judge gave him no way to defend his position in a dispute over property division. Elkins, a self-employed consultant who used to be the chief executive officer of Danville’s CalTech International Telecom Corp., sought review with the First District Court of Appeal. He argued the Contra Costa rule established a system of “trial by declaration” that violated his constitutional due process rights, and placed an “unreasonable burden” on litigants. His writ petition was summarily denied. In Monday’s ruling, the high court sidestepped Elkins’ due process arguments. Instead, the justices found that Contra Costa’s rule violates state statutes that regard written declarations as hearsay that can’t be admitted as evidence in contested trials. Testimony is crucial in divorce cases, the court held, because it gives the judge the chance to determine credibility. “Ordinarily, parties have the right to testify in their own behalf,” George wrote, “and a party’s opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court.” Contra Costa amended the rule earlier this year to permit testimony in addition to, but not in lieu of, declarations. But George said that still fell afoul of state statutes. The chief justice also noted that several amici curiae — including the Northern and Southern California chapters of the American Academy of Matrimonial Lawyers — had sided with Jeffrey Elkins. In addition, he pointed out, a survey of family law practitioners in Contra Costa found most “decidedly critical” of the local rule. George took a shot at the trial court judge too, accusing him of “prejudicing” Elkins by applying the rule “in a mechanical fashion” without considering “alternative measures.” In a concurring opinion, Justice Kathryn Mickle Werdegar came to Baskin’s defense by noting he was only following the rules of his court. “In my view,” she wrote, “the trial court’s rule and order, rather than the particular actions of the court in this case, are to blame for the exclusion of [Elkins'] evidence.” Oakland solo practitioner Garrett Dailey, who represented Jeffrey Elkins on appeal, said the ruling upholds the principle that “the rules of evidence, including the right to offer direct testimony, must be preserved.” He said the ruling sends the case back for further proceedings on property division. Oakland lawyer Jon Eisenberg, a partner at Eisenberg and Hancock who represented the Contra Costa court, called the ruling “a meticulous opinion on the narrow hearsay issue and the broader policy issues.” “It sends the superior court back to the drawing board with clear directions,” he added. The ruling is Elkins v. Superior Court ( Elkins), 07 C.D.O.S. 9285.

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