Judge Faulder Disqualified From Cubbison Case

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’s 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 last year, 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” for any reason or no reason.

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’s 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. Co-defendant 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.

In a court document filed in December, Eyster 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 appointed and later 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.

(Mike Geniella is a veteran North Coast journalist and former DA spokesman who worked part-time under contract until he terminated the arrangement in November 2021.)