Private Judges and the Jolie-Pitt Custody Battle

Now still baby? In real life, Pitt and Joe Lee are involved in another kind of fight, a drawn out constanty battle over their five minor children, and Joe Lee has won the latest round, winning a court decision that means the custody fight, which was nearing an end, could just be getting started. Joining me a celebrity divorce attorney, Christopher Melcher of Waltzer Mal Chair to put this into context, this is a custody fight that's been going on for

something like five years. One of the kids is already is nineteen and not subject to custody arrangement, so this has been going on for a long time. It is the divorce started in and they've been fighting over custody from the beginning with allegations by Angelina that there was some kind of violent or abusive problem on an airplane and that led to investigations and I think some monitored visitation that Brad had submitted to. And it's just been going on and on for five years, which is is

this damaging the kids. I've heard about divorce where there is a custody battle and then years later, you know there's a renewed custody battle to change the visitation schedule or whatever. Has this been just going on continually. This is the first time there's been a decision in the case. So the case has had different facets to it. There was the terminating their marital status to restore them as

single people. There was dealing with some property issues, and then custody has been coming in and out of the case over the years. There was a request by Brad last year for equal custody time and that's when Angelina really started to oppose this and was also being criticized by the judge going back to I believe of her refusal to share more custody time with Brad. Understandably, Angelina's claiming that it wouldn't be safe for the kids to be with Brad so much time. That's her view of

the world. The judge didn't agree with that and wanted Brad to have more custody time. And it was after the judge was making those moves that Jelina sought to disqualify the judge. I understand in cases where a parent claims the other is abusive that sometimes they need to go in and fight for custody, and it can go on for a long time. But a parent needs to see that the cost of the litigation, the harm that's done by an ongoing custody dispute in it of itself

has an effect on kids. So a California appeals court agreed with Joe Lee that the private judge deciding who gets custody of the children should be disqualified because he failed to sufficiently disclose business relationships with Pitt's attorneys. First of all, what exactly is a private judge in California? Under our constitution or state constitution. The parties to a case may agree to the appointment of a temporary judge.

This is usually somebody who's a retired public judge, as in the case of Judge Outer Kirk here, or it can be an attorney with ten or more years of experience.

So our law allows for the appointment of a decision maker in the superior court or trial courts would then appoint that person to serve and be granted pretty much all the powers that a regular judge would have, And that's a commonplace in bigger cases because the parties get to select someone who they think would be fair and who was experienced in the type of matter that they have. It gives the parties the full attention of that judicial officer rather than going to public court who may have

twenty matters on their calendar per day. It's just really talking about minutes rather than hours that can be spent on each case. So this is something that's the feature of pretty much every celebrity case and certainly the big dollar cases. They are using these temporary judges. But the controversy is that they're paid, and does this create two systems of justice, one for the very wealthy and one

for everybody else? And so there has been debate over the years about this, and we saw it crop up in this opinion by the California Court of Appeal that's been critical of that system. And how much are these private judges paid, so the parties can select this temporary judge by agreement, so it cannot be forced on a party.

And the hourly rates for a private judge in California would range from five hundred dollars to maybe a thousand dollars an hour, and that's pretty much in line with what these parties would be paying their counsel, and just depends on how long the case would go on. We've seen certainly hundreds of thousands of dollars and fees be paid to a temporary judge, and even millions of dollars and fees in the very long cases. It sounds like a lot of money and certainly is to pay this

decision maker. But there is a cost of going to public court for the parties, not really in paying the court, of course, but a cost to the litigants of having to pay their attorneys and expert witnesses for a hearing that may never happen. It actually could cost them less money to pay this temporary judge to hear their matter rather than the uncertainty of going to a public court and wasting perhaps many, many thousands of dollars for a hearing that never went forward. So the custody battle has

been going on for about five years. Judge outer Kirk makes a tentative decision giving joint custody of the children, and Jolie says, the judge has a conflict. But he officiated at their weddings, so both parties know him. I don't know how he found himself in that role, but he officiated their marriage and then he was selected to

officiate their divorce. He was agreed upon counseled by both parties when they appointed him years ago, and when they selected Judge outer Kirk, he was obligated to make a disclosure of other cases that Judge outer Kirk had with the counsel for either party, and he made that disclosure.

Judge outer Kirk disclosed that he had some cases with Brad's counsel and he also had some cases with Angelina's counsel at the time, Laura Wasser, and they were all fine with that knowledge that Judge outerer Kirk was handling cases for counsel for other parties that either Brad or

Angelina's counsel were representing them in those other matters. For compensation, Judge outer Kirk's appointment was given for a limited duration, and each time that expired he was reappointed by further agreement of the parties, and he made some further disclosures of other cases that he had with counsel for either party. Eventually, Laura Wasser exits and Angelina is now represented by a

different lawyer who's in San Francisco. And after Judge pouter Kirk had been reappointed, his appointment order went through December or until a judgment of custody was made, whichever was later.

So he had been appointed, he made his disclosures at the time, and after Brad had filed for joint custody, Angelina's new lawyer innocently apparently asked for an updated disclosure out of the blue, even though the appointment order was not coming up for renewal, and Joe joder Kirk responded with two or three additional matters that he had with Brad's counsel. And that's when Angelina cried foul. It smacked

of strategy and tactics. And this was noted by Brad's counsel and even by one of the justices at the court of a real argument. There was a comment that why was it okay for Angelina to accept Judge outer Kirk knowing that he had twelve prior paid assignments by Brad's accouncil. But it was not okay when she learned it might be fourteen or fifteen. And I thought that

remark was cynical, critical of Angelina's position. That would have been telegraphing that she was raising really a technical argument, not an ethical breach. But the appeals Court found that he had committed an ethical breach that might cause an objective person, aware of all the facts, reasonably to entertain a doubt as to the judge's ability to be impartial. Why did they come to that decision considering all that

you've told us. That's what makes cases unpredictable. That the court could have found that the failure to disclose these two or three additional matters were technical, weren't enough to cause a reasonable person to entertain doubt as to Judge

outer Kirk's impartiality. And that was what I was foolishly predicting would happen, because why would a reasonable person entertained doubt as to Judge outer Kirk's impartiality knowing that there were twelve disclosed matters that Angelina and her legal team was accepting of and then adding these two or three other matters were really of the same type, with all of a sudden cast doubt as to whether Judge outer Kirk could be impartial. It makes no sense to me,

but I'm not the decision maker. And the Court of Appeal said that every matter essentially could count, and that these matters count, and that this was an ethical breach. I think what's happening behind the scenes is more of a criticism of the private judging system than anything that Judge outer Kirk himself did, because if we just look at it on the facts of this case, I would think it's more of a technical than an ethical breach. And we do have the criticism in the opinion of

the private judging system. And this may have been a message to private judges that if you're going to undertake this work and be paid for it, which the Court of Appeal seemed uneasy with that concept, that they better follow the rules to the tea. And they're the Court of Appeal, they get to make the rules, and that's what they said and tell us about the concurring opinion.

Justice Siegel wrote a concurring opinion to express his reservations about the private judging system, and he wrote separately because that wasn't an issue that was even raised by Angelina. In her briefing, Angelina was attacking Judge outer Kirk's failure to disclose. She said that Judge outer Kirk was biased against her because he had wanted Brad to have equal custody time despite this prior alleged incident, and wouldn't let

the children testify at a hearing. But she never attacked the private judging system because she had agreed to that system. Just a Siegel on his own brought up this question of can we pay a private judge? So what happens now? Do they pick another private judge and go through all the proceedings again. So Judge outer Kirk has been disqualified and the decision that Judge outer Kirk had made about joint custody for Brad never became final and is certainly void.

Angelina in her briefing was careful to say that she was okay with what Judge outer Kirk was doing before he failed to disclose these two or three additional matters, and was really offended just by the actions that he took after he failed to disclose those matters and was making that argument, I believe because she wanted to preserve the other rulings that Judge outer Kirk had made, including

divorcing them. And if Judge outer Kirk's rulings were invalidated from the get go, well they would still be married to each other and all the property division orders everything else in the case would also be invalidated. So I don't think she wanted that there will be a new judge appointed. That judge will be a public judge unless Angelina and Brad agree to another privately compensated judge, and that will have to go back l a superior court

for assignment. And delay would benefit Angelina because the status quo is the parenting plan that exists right now, which presumably is in her favor in terms of the amount of time that she's allocated, and so the longer it goes on, the longer she has that time. Thanks Chris,

that's Christopher Melcher of Waltz or Melcher. Progressive groups seeking to remake the Supreme Court had hoped to spend this summer helping win confirmation of what was expected to be the first black woman nominated as a justice instead, Justice Stephen Bryer opted not to retire, and advocates who are focused on the court's conservative bent have watched their issue mostly received from view joining me as Madison Alder Bloomberg Law Reporter. What were the progressives focused on before the

end of the Supreme Court term? So this past term, the issue of Briar's retirement has really been front and center for progressive organizations like Demand Justice, which is a progressive judicial advocacy group, really put this in the front of people's minds. They had a billboard bus that was circling the Supreme Court calling for Briar to retire and that would make room for Biden to appoint the first black woman justice, which he said he would do on

the campaign trail. But when the term came to a close, and you know, Briar, in an interview with Sannon said he's happy where he is on the Court and he hasn't made any decision on retirement. That kind of closed

the door on this. Pretty personally said rallying cry for progressives or pretty strong rallying cry for progressives that Biden had an opportunity here to appoint the first black woman justice, and now that leaves open the possibility of other areas for progressives to try to get the attention of their constituencies and and try to keep the focus on the court. You know, we should point out that even if Briar had retired, it would have just been substituting one liberal

justice for another. It wouldn't have made any change in the conservative majority on the court. Right. Brian Fallon, who is the executive director of Demand Justice, told me that they never had any illusions about Briar retiring and being replaced necessarily making an impact in some of the broader structural changes they'd like to see in the judiciary. Right, Like you said, it's replacing liberal justice with the liberal justice. They're also interested it in seeing the Supreme Court expanded

and some of these changes coming about. Um, so this is something that might have helped with the margins, but in their eyes, it wasn't the end of the line. Now what's interesting is Demand Justice is working with some student groups now. So Fallon told me that the way that they're looking at keeping the attention on the court is by focusing on the next term, which is already shaping up to you know, deal with some pretty hot button issues like abortion and gun rights UM and possibly

affirmative action. And so through those issues, Demand Justice is teaming up with student groups like March for Our Lives and Sunrise Movement to really highlight some of these issues going forward and kind of fire up their base. Are they anticipating that the decisions are not going to be what liberals would want to see? I think that's the position.

Advocacy group typically taken these kinds of scenarios and there's a hot button issue, and especially given the sixth three majority of the majority at the Superhan Court, they are always going to advocate for um the fact that they could possibly get the result that they're looking for in these cases. It doesn't necessarily mean that that's going to happen, but you know, if the justices vote, uh maybe in line with the political parties that appointed them, that that

could be the result. One group, She Will Rise. I hadn't heard of this group before. Tell me about that group. So She Will Rise is an initiative that was first started and incubated under Demand Justice, as that was described to me, and then it has moved under a new organization called Take Creative Control UM and it is squarely focused on advocacy surrounding appointing the first black woman justice

to the Supreme Court. So some of their work has been painting a mural in in the Shaw neighborhood of Washington, d c UM that depicts black women and the Supreme Court kind of envisioning this idea of a black woman justice. UM. They also collected, you know, a huge group photo of a whole bunch of black girls who were dressed in judicial roads to kind of show what the future would look like for the Court. And so their advocacy is

kind of in that. Vein and Kim Tigner, who who co founded this organization, told me UM that they're they're planning on keeping the focus on that by supporting Biden's judicial nominees, many of which has been black women. UM, and kind of supporting this pipeline that's building for black women judges and creating the foundation for the first black woman justice on the Supreme Court. You're also focusing on the clerks at the Supreme Court. Do they get demographic

information about the law clerks that the justices employ. So that's not something that the Court typically readily gives out, but UM, it's one of the areas. She said it was an example of something that her organization is going to you know, prompts the Supreme Court on is going to ask about demographic information about clerks, because that is, as she explained, it, a pipeline in itself to becoming

a future justice. So Madison Brian Fallon of Demand Justice said he expects more people to call on Briar to step down next summer, So likely if these calls are going to take place again when there is another opportunity for prior to retire. Of course, he could retire at any point, but it is more likely that he would did this at the end of a Supreme Court term

and when that happens. Uh Balan said he could see potentially more people getting on board with a more Democrats getting on board with this um because their biggest critics during this past session were people who said, give Briar's face, give him the benefit of the doubt, maybe he will retire and in in falonce you uh, those people now might be a little bit more uh willing to call on him to retire now that he has already not done at once. So they believe that calls will grow

at the end of next term. After the Cenni interview, it seems like, you know, Briar is not even considering retirement at this point and loving the role he's in, which is remarkably similar to what happened with the late Justice Ruth Bader Ginsburg who became the leader of the liberal block and held onto it and there's nothing that can be done to force him to retire. Right, this is ultimately Briar's decision, and as he said that interview

your he's happy where he is. But since then, um on, then again Amy Klobatar during Clobatar, she kind of uh said Briar should should potentially think about retiring as soon

as possible. Um So, you know, it's already something that we're seeing Democrats continue to talk about, even if the calls don't feel like this is something that could immediately take place now Because are liberals disappointed in the commission that's been set up by the White House to examine issues surrounding the court, Well, there's certainly have been some criticisms of this commission. Early on, there were criticisms that, uh, they were potentially going to talk about issues and not

really come to any solutions. The commission is set up to to not give recommendations specifically, it's going to do an exploration of a lot of the reforms that could happen at the Supreme Court, but not necessarily be prescriptive to the president. UM. So that was that was something that I think some of these groups have taken issue with. But more recently, Uh, you know, we've seen now that we've we've had witnesses come before the commission and UM,

they've done more publication meetings. Uh, there have been criticisms that it isn't very reflective of the people that the Supreme Court decision has impact most and looks a lot like an academic conference. UM. A lot of the people attended the same law schools. UM. There was actually a few moments in some of the recent hearings where someone was speaking to their former professor UM or their former student.

It happened a couple of times with the most recent hearing, and advocates say that, you know, this is an issue, because this is an urgent issue, the issue of the Supreme Court UM and not being representative of the American public, and if they want to create a solution, they should include people who are most impacted by this decision. It seems that packing the court is the only way they're really going to change the conservative majority on the Court,

at least to me. But it's such an uphill battle to the progressive groups you've talked to really have any hope that that could be accomplished, that they could pack the court. So I spoke a little bit to Brian Fellon about this again. He's the executive director at Demand Justice, and he told me that they know that this isn't something immediate. Right the sixty vote threshold is for legislation is still in place in the Senate, and it doesn't

look like that's going anywhere for the time being. So Democrats can't just approve an expansion of the Supreme Court on their own. They would likely need Republican support and that is not going to happen. So they know that this is something that that they aren't going to achieve in the short term, but he sees that as as

a long term goal. You know, may be similar to the way that the calls to get rid of the legiblative filibuster have been uh increasing over over the years, Maybe support among Democrats for court reform and especially for Supreme Court expansion would grow over time. You know, you always hear about Demand Justice, but there's another advocacy group, Alliance for Justice, that's been around a lot longer, and the founder is going to leave after forty two years.

So Nan Aaron, who is the founder of the Alliance for Justice, is stepping down. She announced this in January.

It's going to be effective in September, and um she's going to be replaced with Rakim Brookes who is an a c l U strategist and he's going to be take being over over that role and over the organization, which is a really key organization for progressives when it comes to UH judiciary issues, including judicial nominations, and Nan Aaron has definitely been a prominent figure in the judicial nomination space for for liberals. So you have Demand Justice,

Alliance for Justice. What other liberal or progressive judicial advocacy groups are they're out there. On the court reform side, there is take Back the Court that is an organization that is also pushing for Supreme Court reform and UM specifically pushing for you know, basically anything that would expand or great term limits, that sort of thing. And then you also have People's Parody Project which is mostly a student led and young lawyer led group. Um, they're fairly new.

They have been pretty vocal in the last few months on the briar fronts and also on judicial nominations, pushing for more diversity in those nominations. So I think those are kind of the fours that come to mind for me at least, Demand Justice, Alliance for Justice, Take Back to the Court, and People's Parity projects. Thanks for being on the show, Madison. That's Madison Alder, Bloomberg Law reporter.

Coming up next on The Bloomberg Law Show, the Justice Department is refusing to defend Republican Representative Moe Brooks in a lawsuit over the Capitol Riot. I'm June Grosso and you're listening to Bloomberg