Wednesday Feb 10 2010
Judge rejects request to set aside Barry ruling
By: Eric J. Gourley, Journal Sports Writer
Del Oro High transfer will not play in Roseville tonight
Remi Barry will not play in Del Oro High’s basketball game at Roseville High tonight. A Placer County judge rejected Wednesday a request to set aside another judge’s ruling against the French transfer, whose legal battle to reverse a California Interscholastic Federation decision denying him athletic eligibility has spanned almost three weeks. In a four-page fax to attorneys from both sides, Placer County Superior Court Judge Robert P. McElhany upheld Judge James D. Garbolino’s determination that Barry is ineligible to play basketball for the Golden Eagles due to an “athletically motivated” transfer in violation of CIF bylaws. Mark A. Campbell, Barry’s attorney, filed a peremptory challenge last week to disqualify Judge Garbolino based on his marriage to the mayor of Roseville, where three of Del Oro’s rivals are located. Judge Garbolino agreed to disqualify himself, and the Presiding Judge assigned the matter to Judge McElhany. “In his ruling he indicated that his acknowledgement of the challenge deprived him of the ability to consider the validity of his original order and he expressly left that determination to others,” Judge McElhany wrote of Judge Garbolino. Barry argued that he and his counsel had not been informed the case had been assigned to Judge Garbolino before he issued his ruling last week. McElhany addressed the assertion in his ruling Wednesday. “Failure of the Court to give notice to Petitioner of the judge considering his ex parte application did not deprive Petitioner of the right to challenge Judge Garbolino, he did not have that right to begin with,” the judge wrote. McElhany wrote that the peremptory challenge, under California Code of Civil Procedure Section 170.6, “provides, in part, that no trial judge may hear any matter involving a contested issue of law or fact if it is established that the judicial officer is prejudiced against a party or attorney or the interest of a party or attorney. “The statute does not permit a peremptory challenge to be filed or accepted absent a pending trial, a pending hearing involving a contested issue of fact or law, or an all-purpose assignment. “Judge Garbolino’s participation in this case did not involve a consideration of a contested issue of fact and a peremptory challenge prior to the issuance of his ruling would have been premature.” Campbell believes Garbolino did determine facts in his ruling last week. “The judge is saying that Judge Garbolino didn’t make any determination of fact and I’m a little puzzled by that,” the attorney said. “He clearly weighs the evidence. He used the word evidence and makes what I believe of course is the wrong conclusion.” Campbell planned to meet with Barry and the Hendricks family with whom the transfer lives in Loomis Thursday. “We’ll get together and we’ll figure out what happens from here,” Campbell said. Del Oro has four Sierra Foothill League games remaining, including tonight’s contest. The Golden Eagles are ranked ninth in this week’s power ratings. The top eight teams host a first-round playoff game on Feb. 24.