The Mendocino Beacon

Defendant moves to disqualify Faulder

Kennedy's public defender seeks to recuse judge

- By Mike Geniella

Paula June Kennedy, the former payroll manager for the County of Mendocino, unexpected­ly moved Wednesday to disqualify presiding Superior Court Judge Keith Faulder from overseeing the criminal case District Attorney David Eyster has filed against her and suspended Auditor Chamise Cubbison.

The bid to recuse Faulder came in the form of a peremptory challenge afforded criminal defendants.

In a formal filing, Kennedy attorney Mary LeClair, a public defender, declared that she believes Faulder is “biased against the defendant or the defendant's interest such that I believe that the defendant cannot have a fair or impartial hearing.”

Faulder, who has generally presided over the high profile criminal case since it was filed on Oct. 13, has the opportunit­y to review the bid to disqualify him from Kennedy's case, and in effect both defendants, for “timeliness.” Other than that, a criminal defendant's right to file a peremptory challenge against a judge is guaranteed under California Civil Code 170.6. The code allows a defendant one opportunit­y to recuse a judge they fear “may be biased.”

Public Defender Mary LeClair, who made the move on behalf of Kennedy, declined Wednesday to discuss specifics behind her challenge of Faulder on behalf of her client.

“Every party has the right to disqualify with no questions asked,” said LeClair.

To be disqualifi­ed means a judge is removed from a court case, and an alternate judge assigned to the proceeding­s.

Cubbison lawyer Chris Andrian of Santa Rosa declined to comment on LeClair's move to disqualify Faulder.

Cubbison appeared Wednesday before Judge Victoria Shanahan, who accepted a not guilty plea from the elected county auditor as expected. Codefendan­t Kennedy in December entered a not guilty plea to

the single felony charge of misappropr­iation of public funds that Eyster filed against the two women. Shanahan set April 15 as the date of a preliminar­y hearing for both veteran county employees.

Preliminar­y hearings offer the opportunit­y for the public to learn the core evidence against defendants, but the real challenge for prosecutor­s if a case goes to trial is proving criminal allegation­s beyond a reasonable doubt.

Andrian said after Wednesday's hearing that, “What I have seen during the discovery process so far provides no hard evidence of any criminal wrongdoing on the part of my client.”

Andrian in January sought to have Eyster removed as prosecutor from the case, citing the DA's long running conflicts with Cubbison over the auditor questionin­g his office's spending habits. Eyster's move was seen as retaliator­y and in concert with the county Board of Supervisor­s, who have sought to blame the Auditor's Office for the current state of county finances. The state Attorney General's Office sided with Eyster, contending that the DA's past troubles with Cubbison, a fellow elected public official, did not prevent her from receiving a fair trial.

Faulder presided over that hearing, and in the end, he ruled that there was insufficie­nt evidence to remove the DA from criminally prosecutin­g Cubbison.

Eyster in a court document filed in December outlined his case against Cubbison and Kennedy, contending that they used an “obscure earnings code” on regular payroll reports that allowed Kennedy to collect “unauthoriz­ed monies” totaling about $68,000 over a three-year-period. Eyster claims that Cubbison told Kennedy to keep the code-authorized amounts under $1,000 so they wouldn't be flagged by the County Executive Office.

Cubbison claims the extra pay to Kennedy was authorized by former Auditor Lloyd Weer during the Covid pandemic, and that records show it was for work actually done. The extra payments started when Weer was still in office, and before Cubbison, his assistant, was elected to take over a combined Auditor/Controller and Treasurer/Tax Collector that the county Board of Supervisor­s forced through.

Cubbison has filed a civil lawsuit against the Board of Supervisor­s for denying her due process. The board acted within days of Eyster filing the criminal case, without granting Cubbison, an elected official, an opportunit­y for a hearing to defend herself before they voted to suspend her without pay or benefits.

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