Judge in Paul Evert case removes himself; he was Facebook friend of winning lawyer

The Fresno BeeMarch 11, 2014 

The judge who smacked Paul Evert's RV Country with a $4.5 million defamation verdict has disqualified himself from the case after he admitted that he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court civil trial.

Judge Jeffrey Hamilton's decision to give up the case appears to follow state judicial ethics guidelines. It also puts the verdict in question because he had not signed the final judgment, and could give rise to Evert and his employees getting a new trial.

Hamilton declined to comment Tuesday, citing judicial ethics.

But in the court declaration where he disqualifies himself from the case, he says he told both sides on the first day of the trial in May that he is a friend of Jeff Hammerschmidt, one of the plaintiff's attorneys.

"No problem," all of the lawyers told Hamilton, according to his declaration filed in Superior Court.

On Jan. 17, Hamilton concluded the non-jury trial by siding with Hammerschmidt's client, Fresno RV and Clovis RV owner Bob Brewer, ruling that Paul Evert and his employees tried to put Brewer out of business by spreading rumors that he was under investigation by state regulators.

A month later, Evert's lawyers notified Hamilton that his Facebook activity closely linked him and his family to Hammerschmidt and his family -- and that the judge had erred in not disclosing it before the start of the trial.

Read court documents associated with the case

In his declaration, Hamilton said he didn't know that the Facebook friendship he had with Hammerschmidt was an issue, especially since he disclosed his personal friendship with Hammerschmidt twice during the trial, and never corresponded with Hammerschmidt about the Evert case during the trial.

But in their motion to disqualify, Evert's lawyers said the friendship between Hamilton and Hammerschmidt "was closer than had been previously disclosed by Judge Hamilton."

Evert's lawyers say Hamilton had 36 Facebook friends, including Hammerschmidt. It's not clear whether Hamilton still has a Facebook account, but one wasn't evident in a search of the social media site Tuesday.

Court filings by Evert's lawyers recount what they say they found on Facebook:

While the punitive damages phase of the trial was underway in December, Hamilton commented on a photo posted by Hammerschmidt showing Hammerschmidt and his family: "Nice looking photo of you all!"

Soon after Hamilton's verdict, Hammerschmidt's wife, Kayleen, shared a link about the Evert case with a caption that said: "Trying to slander your competitor and put him out of business ... 4.5 million. Exposing the kind of business Paul Evert RV really is ...Priceless! Great job sweetheart!"

The motion doesn't say whether Kayleen Hammerschmidt's post appeared on Hamilton's Facebook page, but the judge in his declaration says he and his wife were not Facebook friends with Kayleen.

Evert could not be reached to comment Tuesday, but in a court declaration, he says that, had he known that Hamilton and Jeff Hammerschmidt were Facebook friends, he would not have agreed to waive a jury trial. "I would have objected to Judge Hamilton presiding over this case."

Hamilton, who was appointed to the Superior Court bench in 2005 and is unopposed in this year's election, says in his declaration that he seldom used Facebook, posting only 13 times since opening an account five years ago.

"Two of those were regarding his eldest child's acceptance to college, one was a link to a youth soccer coaching tips and the other ten were 'Happy Birthday' comments when prompted that it was a friend's birthday," his Feb. 28 declaration says.

Hamilton also says he was unaware that the California Judges Association's Ethics Committee wrote in 2010 that "when a judge learns that an attorney who is a member of that judge's online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e., the attorney should be "unfriended") and the fact this was done should be disclosed."

Though the Ethics Committee's opinion is advisory, Hamilton says he "does respect its value" and decided to disqualify himself to avoid any appearance of being partial to one side.

Hammerschmidt said Tuesday that he never tried to hide his friendship with Hamilton, a person he has known since the mid-1990s when they both worked as prosecutors in the Fresno County District's Attorney's Office.

"I have about 750 Facebook friends and it's open to the public," Hammerschmidt said. "So any time during the trial, they could have looked at my list of friends."

Hammerschmidt said his Facebook connections didn't become an issue "until Paul Evert's dirty deeds were exposed."

"Once they were hit with $4.5 million in punitive damages, they were looking for any technicality they could find, which isn't surprising," he said.

This is not the first time a Fresno County judge has been been in trouble for using technology.

In 2010, Judge James Oppliger, while sitting as a juror in a murder trial, sent emails to other judges containing jokes about the case and criticism of the attorneys.

Judge Arlan Harrell later ruled that Oppliger's conduct did not harm the defendant's right to a fair trial.

A status hearing on the Evert case in front of Presiding Judge M. Bruce Smith is scheduled March 21.

Read previous stories on the Paul Evert's RV Country civil case

The reporter can be reached at (559) 441-6434, plopez@fresnobee.com or @beecourts on Twitter.

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