LaMusga v. LaMusga
Text of email of August 11, 2003 from Sandra Blair, Esq. to ACFLS*
Association of Certified Family Law Specialists, California
(the organization represented by Leslie Shear's Lamusga brief)
Sandra Blair is a former President of the Association of Certified Family Law Specialists.
She does not represent any party in this case.
Subj: [ACFLS-Members] Leslie Shear's solicitation for LaMusga Amicus Brief
Date: 8/11/2003 11:53:57 AM Pacific Daylight Time
I am writing to you as a Certified Specialist since 1981 and a former President of our organization (1990).
I do not know Leslie Shear. But I was very disturbed to see her solicitation for signatures for an amicus brief "on behalf of the minor children in Marriage of LaMusga." (Emphasis added.)
The children were not represented at the lower court. The children do not have appointed counsel in this appellate matter. It is misleading for Ms. Shear to solicit signatures on this brief "on behalf of the minor children."
Amici can support a party and/or present the views of the signers. The brief of Dr. Judith Wallerstein and the brief of Professors Carol Bruch and Herma Hill Kay did not purport to represent these minor children.
Ms. Shear does not represent these children. The children have recently appointed counsel at the trial level who submitted a report to the court stating that the children's wishes were to move with their mother to Arizona. Counsel thought the children would "thrive better living with their Mom but that they need significant time with their Dad." The evaluator, Philip Stahl Ph.D., has recommended that the children move to Arizona with their mother pending the Supreme Court decision.
At best, Ms. Shear's brief represents her view and the ACFLS' view that all children would be better served by the abrogation of the Burgess rule and fewer relocations of primary custodial parents and children.
I know that none of us wish to receive a lot of email. But in the interests of keeping all of us honest in our use of this list, I decided to send this email.
Law Offices of Sandra Blair
605 Market Street, Ninth Floor
San Francisco, CA 94105
SOME OF THE RESPONSES [may be excerpted]:
Date: 8/11/2003 12:10:48 PM Pacific Daylight Time
Thank you for your e-mail.
Allow me to share with you my reaction upon receipt of Ms. Shear's invitation to "sign on" to her Brief. I was taken back in time to when I was an eager, young Legal Services Attorney in the late 60's or early 70's. I received a similar solicitation from a pair of fellow Legal Services Attorneys to "sign on" to an argument opposing certain legislation then working its way through the system. Foolishly, and thinking with a "jerking knee", as opposed to my brain, I did as requested. Imagine my chagrin, when I was chastised for opposing a bill that was, in fact, being supported by the majority of the Legal Services Bar. Whether the bill in question was any good now escapes me and is of little importance. What is important is that I acted with very little thought and within a very brief time frame.
Receiving Ms. Spears e-mail was "deja vu all over again" !
Arnie Breyer, CFLS
Thanks, Sandy - honest and brave
220 Montgomery Street, 15th Floor
San Francisco CA 94104
FAX (415) 397-1577
Collaborative Websites: www.collabgroup.com; www.collaborativelawsf.com
Subj: RE: [ACFLS-Members] Leslie Shear's solicitation for LaMusga Amicus Brief
Date: 8/11/2003 1:42:03 PM Pacific Daylight Time
I for one am glad you sent this.
I haven't read her brief though I did receive the solicitation. Do you represent one of the parties?
Subj: Amicus commiitee
Date: 8/11/2003 12:32:40 PM Pacific Daylight Time
To: firstname.lastname@example.org, Sandrablairsf@cs.com
I agree. Sandra, If you would be willing to be involved next year, the Nominating Committee is currently developing its proposed slate and I would be delighted to propose you as chair of the Amicus committee. We currently have no one on the horizon for that position.
From: Frieda Gordon [mailto:email@example.com]
Sent: Monday, August 11, 2003 2:22 PM
Subject: Re: Shear's amicus brief
...I do appreciate your taking the time to analyze the problems associated with the signing on as an Amicus in Sharon S. and your opinion on Leslie's questionable practices... The short of it is, we got involved at the last minute and the board voted in favor of signing on... If you have a few minutes and wouldn't mind putting on paper (e-mail is fine) your thoughts for standards on the solicitation and use of ACFLS in amici situations that I would present to the board at our State Bar meeting in a couple of weeks, I would be delighted to put it on our agenda.
ADDITIONAL COMMENTS OF SANDRA BLAIR, CFLS:
...I think it is divisive for ACFLS to take positions on controversial issues such as the applicability of the prudent investor rule during marriage or the standard for relocation of children after divorce. There are a lot of strong feelings about the Burgess rule and whether or not its abrogation would serve the best interests of children.
I realize that it is a feather in our collective cap to have amici briefs filed on behalf of our organization. And I think that there are issues that a vast majority of us can stand behind as an organization. The recent decision in Sharon S is probably a good example.
There was another problem with Leslie's brief in this case, in addition to her implication that she represented the LaMusga children. She filed late without seeking an extension of time. This is embarrassing for an organization of specialists. I understand that she has done this in the past. I do not know whether she has done it on any other brief for ACFLS. A group of family law specialists should be able to file an amicus brief in a timely fashion or request an extension of time.
RESPONSE OF LESLIE SHEAR:
Subj: [ACFLS-Members] Role of Amicus
Date: 8/12/2003 9:46:02 AM Pacific Daylight Time
To: Sandrablairsf@cs.com, firstname.lastname@example.org
I write in response to the concerns voiced by my colleague, Sandra Blair.
The Supreme Court has accepted the brief captioned as filed on behalf of the children. It has done the same with the brief that Don Eisenberg filed, drafted by Dr. Richard Warshak and signed by many prominent mental health professionals and researchers.
The role of amicus is not as a substitute for minor's counsel. It is not to advocate the interests of an individual client or clients. When an amicus brief is filed on behalf of the children, it is filed on behalf of the children as representative of those similarly situated. The brief does not advocate for a particular outcome for the LaMusga children, it advocates for a legal framework in which the family court has the broadest possible discretion to act in their best interests. There is no risk that the Court will confuse an amicus brief with a minor's counsel brief. The thought that recipients of the email might do so did not occur to me and still seems really remote. An amicus is a kind of party -- not a substitute for a party.
I always frame the position of amici in appellate cases involving children as about children's interests, not parents' interests. Consequently, I file the brief as amicus on behalf of the child or children. When I file an amicus brief, it is never about the particular family, it is always about the principles as they will apply to thousands of families. For example, see the amicus brief in Marriage of Buzzanca.
Dr. Wallerstein and the others who filed amicus briefs on behalf of the mother chose to frame their role in that fashion. That does not obligate other amici to follow suit. I believe that their briefs are properly filed on behalf of the mother, and that they advocate elevation of parental interests over children's interests. There is noquestion that many people disagree with me.
It is precisely because the children are not represented on appeal that it is particularly important that the amici framed their briefs from a child-centered perspective, not as the champion of one parentâ's desires. This is particularly true on an issue like relocation, which is shaped in the shadow of gender wars.
Amici have, and should have, no interest in the outcome of any particular case for the particular family. We have an interest in the development of the law. Children are best protected when trial courts have the broadest possible discretion to consider all factors that affect their well-being. The brief advances a view that the law should develop in a child-centered fashion. The brief I filed says that some moves should be granted and others should be denied. I do not recall voicing any view about the move of the LaMusga children. However, the trial court had already made a determination that a move for those particular children would be detrimental. The issue on appeal is never what is in a particular child's best interests, it is what law should govern the process in which the children's best interests are determined.
In LaMusga, the trial court had determined what the children's best interests required. The Court of Appeal said that the children's best interests could not be considered by the trial court. The issue is whether the law precludes the Court from acting in the children's best interests. I don't think anyone reading the brief I filed will be misled.
Leslie Ellen Shear,CFLS* (St. Bar of CA, Bd of Legal Spec.)
16830 Ventura Blvd. Suite 351
Encino, CA 91436
818 501-3692 (fax)
(1) That the court "accepted the brief" is beside the point.
(2) That it was signed by "many prominent mental health professionals" (debatable) is beside the point.
(3) Shear's brief DOES claim to have been written "on behalf of the LaMusga children" and (arrogantly) that "the LaMusga children are unrepresented and entirely unprotected." (How offensive. What is their mother who bore them, and who has lovingly and attentively raised them for nearly a dozen years, caring, guiding, schooling, shopping, shlepping, feeding them, wiping their noses, making them priority in her life, etc. -- chicken feed?)
(4) This IS a case that affects actual individuals, the parents and the children, and is not a hypothetical case. The political shennanigans of Shear et al. in this case already HAVE affected these individuals, and affected them negatively, by causing all of them, children included, unnecessary anxiety, stress, interference and meddling in their lives, and wasting a considerable sum of time and money.
(5) Shear's and Warshak's claims to be representing the children's interests are beyond pompous -- who are these people to claim that they know better what is in hypothetical children's interests than children's own parents? Not to mention that the claims are false -- Shear's brief states that it was written because the brief of "Respondent" (that's the father -- Shear's brief supports the FATHER'S position, NOT the childrens' position) was too "conservative." This is no different from the posturing of every father's rights group all of whom profess to be acting on behalf of the children (every jerk knows better than children's custodial mothers what's good for them.) Shear already was in cahoots with the father's lawyer, Garrett Dailey, in August 2002 -- almost a year before her brief was filed -- falsely claiming that the children were "severely alienated" and busily writing her letter brief urging the Supreme Court of California to review the LaMusga case. So Shear et al. indeed do represent the father's interests, and they weren't suddenly compulsed by the need to write a brief on his behalf upon reading Judith Wallerstein's brief in this case.
(6) Finally, advocating for a change in the law that will make every custodial family who needs to move jump through time-consuming, expensive, anxiety-provoking and pointless legal hoops (or else throw up such legal hurdles that justice is denied altogether) hardly is in the "best interests" of any children in the State of California or anywhere else. Read Suzy's story and the rest of the facts of this case and decide for yourself. -- liz]