Judicial Discipline Decisions

January-February 1999

In the Matter of Morales, Judgement and Order (Arizona Supreme Court September 11, 1998)

Pursuant to the recommendation of the Commission on Judicial Conduct, the Arizona

Supreme Court censured a judge for (1) frequently exhibiting anger and losing his temper in the

courtroom; (2) baiting a defendant into committing contempt; and (3) altering the public record

in a case. The judge had stipulated to the facts and waived his right to defend against the

charges. The court also ordered the judge to participate in a program of counseling and training

approved by the Commission, to conduct all proceedings in the courtroom, and to tape all

proceedings so that his conduct could be periodically monitored. The judge had initially

believed his conduct should be excused because he was attempting to motivate defendants, but

eventually recognized that his conduct was a violation of the code.

(1) The judge had stipulated that he frequently exhibited anger and lost his temper in the

courtroom, often with young defendants, shouting and belittling them while leaning

over the bench and pointing his finger. The judge had thrown pens and files during

these outbursts.

(2) (2) On one occasion, the judge told a defendant that if he said one more word in the

courtroom, the judge would find him in contempt. While that defendant was still in

the courtroom, the judge repeatedly told the next defendant, “Some people, you give

them chance after chance, and they still screw up,” while looking at the first

defendant. He repeated the comments until the first defendant said, “Enough, I got

it,” and then the judge jumped up and shouted, “Contempt.”

(3) (3) One time, the judge spilled coffee on a court file during the middle of a hearing

and said, “Oh, shit.” He then turned off the tape recorder and reversed the tape

because he did not want that language on the tape “in case someone is listening to

them.”

In the Matter of Pearlman, Judgement and Order (Arizona Supreme Court December 10, 1998)

Pursuant to the recommendation of the Commission on Judicial Conduct, the Arizona

Supreme Court suspended for two months a judge who had made inappropriate or offensive

comments, both in and outside the courtroom, and failed to timely rule in two criminal cases.

The judge was given credit for one month of suspension already imposed by the city for which

he was judge. The court also ordered the judge to pay attorney fees and costs. The judge had

stipulated to the facts and waived his rights to defend against the charges.

During a break in a pretrial hearing in a traffic case in which the defendant was charged

with improper backing, the judge said something like “I assume we are talking about a traffic

offense, counsel, and not a sex offense . . .” or “Is that a sex offense, counselor, or a traffic

offense.” The minor defendant was in the courtroom with his mother at the time, although it was

not clear whether the defendant, his mother, or anyone else heard the comment.

In a case in which the defendant asked if he could pay his fine with a check, the judge

embarrassed him in front of approximately 20 members of the public by saying, “As long as they

can’t play basketball with it,” which the defendant understood implied that his check would

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bounce. The judge did not intend to imply that the check would bounce but requested to

formally apologize to the defendant.

The judge offended a courtroom clerk on at least five occasions over a period of two

months with sexually suggestive comments. When the clerk was sitting or kneeling on the floor

as she worked with court files, the judge commented: “Down in your usual position, I see;”

“Down in your favorite position;” “Now I see you are in an erect/upright position;” and “Good to

see you assumed the position.” When the judge saw a police officer and the clerk exchanging

coins by the soda machine, he said, “She’s worth more than that.” The clerk believed the

comments were sexually suggestive and attempted to discourage them, but did not directly tell

the judge she was offended. When the judge learned of the clerk’s concerns, he apologized and

avoided any comments that could have any sexually suggestive connotation.

A defendant in a criminal case asked for a jury trial on February 24, 1997, and asked the

judge to rule on the request on April 25, 1997. At oral argument on May 2, 1997, the judge

denied the motion, stating that an opinion would follow but did not issue the opinion for ten

months. In a second case, the judge did not rule on a motion to suppress evidence until four

months after the matter was submitted to him for a decision.

The Commission noted that it had admonished the judge in 1992 and reprimanded him in

1998. The Commission also noted that the judge’s presiding judge had talked with him about

comments and body language that was rude or offensive in the courtroom and to court staff. The

Commission also noted that the judge had served on the bench since 1988 with relatively few

complaints and had expressed his sorrow for any comments that might have been taken in a

manner unintended by him.

Letter to Judge Tom Keith from the Arkansas Judicial Discipline & Disability Commission

(January 20, 1999)

The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge

for not acting for almost six months on a writ of mandamus issued by the Arkansas Supreme

Court directing the judge to act upon a Freedom of Information Act request. The Commission

noted it had been pleased to learn at the probable cause hearing that the judge had put program in

place to ensure that such delay would not happen again.

Inquiry Concerning Trammell Decision and order imposing public censure and order barring

Judge Trammell from receiving assignments (California Commission on Judicial Performance

January 5, 1999) (cjp.ca.gov/pubdisc.htm)

The California Commission on Judicial Performance censured a former judge and barred

him from receiving assignments, appointments, or reference of work from any California state

court for having a clandestine, intimate relationship with one of three co-defendants, continuing

to preside over their cases, allowing the relationship to influence his actions, and engaging in

numerous improper ex parte communications. The Commission concluded that this conduct

constituted willful misconduct in office and conduct prejudicial to the administration of justice

that brings the judicial office into disrepute.

The Commission found that the judge had a sexual relationship from mid-September

1996 through early January 1997, with a woman (Lo) whom he had sentenced to probation and

who was a co-defendant with two individuals who had been convicted of felony charges and

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were awaiting the judge’s rulings on their motions for a new trial and sentencing. The

Commission also found that the judge actively tried to keep the relationship secret. Despite

presiding over a number of hearings in matters concerning the three defendants, the judge did not

mention his relationship with Lo and, at one point, gave the impression that he did not even

know her name. The judge used Lo’s pager to send coded messages, and a deputy sheriff

testified that the judge declined to have a surveillance camera installed at his residence, stating

incorrectly that he already had such a camera. The Commission also found that the judge

misused his judicial office in an attempt to further his relationship with Lo. He counseled Lo on

how to seek the return of seized property, arranged for the appointment of an attorney

specifically to assist Lo in securing the return of property, and then ruled on the motion. Both

the attorney and Lo’s probation officer testified that the judge intended to reduce Lo’s term of

probation from five years to one. Finally, just before he resigned from the bench, the judge, on

his own motion and without notice to the district attorney or counsel, ordered the condition of

probation requiring Lo to submit to psychological counseling eliminated. The Commission

found that the judge engaged in at least 13 improper ex parte communications with Lo and one

of the other defendants and with attorneys involved in those proceedings.

Inquiry Concerning Blackwell, Decision & Order Imposing Public Admonishment (California

Commission on Judicial Performance February 23, 1999)

Pursuant to the agreement of a judge admitting the charges, consenting to the sanction of

public admonishment, and waiving review by the supreme court, the California Commission on

Judicial Performance publicly admonished the judge for committing fraud during settlement

negotiations in a suit in which he was party.

The judge had been general counsel and executive vice president of the Fidelity Federal

Bank from 1974 until July 1988. Upon the termination of his employment, he entered into an

agreement with the bank, pursuant to which, he received severance and consulting payments

from July 1988 through October 22, 1989. The bank inadvertently sent the judge eight

additional checks after October 22, 1989. The judge cashed the eight checks without notifying

the bank. In 1989, the former bank president, CEO, and chair of the Board became involved in

litigation involving the bank. The bank agreed to pay the former president’s attorney fees, and

the former president retained the judge to represent him in a lengthy deposition. However, a

dispute arose that resulted in the bank refusing to pay the attorney fees for the judge’s

representation of the former president. The judge filed suit against the bank for approximately

$15,000 in attorney fees and one million dollars in punitive damages. The bank eventually

agreed to settle the action by paying the judge approximately $15,000. The judge told the bank

that he would accept the settlement only if the bank agreed to a general release of all claims

against him, known and unknown. During settlement negotiations, the judge was asked if he

knew of any claims that the bank might have against him. Despite knowing that the bank had a

potential claim against him for cashing the inadvertently McCartney v. Commission on Judicial

Performance, 526 P.2d 268 (California 1974).

Writ of review proceeding was instituted to modify or reject removal recommendation of

Commission on Judicial Qualifications. The Supreme Court held that notice to a judge under

investigation as to nature of complaints against him is not compelled as a matter of due process,

nor is judge denied due process when Commission, pursuant to its own special rule, limits

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discovery to items other than depositions, that procedural irregularity and notice of investigation

cannot of itself impair validity of subsequent recommendation of removal, that there is no

impropriety in refusal of Commission to open hearings before special masters to the public, that

angry criticism of public defenders for filing affidavits of prejudice may reasonably be deemed

to constitute ‘willful misconduct’ in office, that periodic assumption of the role of advocate is

beyond the bounds of judicial propriety, and that willful misconduct and conduct prejudicial to

administration of justice warrants censure rather than removal when inexperience and attempts to

‘do justice’ are present.

Recommendation of Commission rejected, and censure ordered.

BY *517 THE COURT.

We issued a writ of review in response to the petition of Judge James J. McCartney, filed

pursuant to rule 920 of the California Rules of Court, [FN1] that we modify or reject the

recommendation of the Commission on Judicial Qualifications (hereinafter the Commission) that

he be removed from office. [FN2] Judge McCartney contends that the Commission has denied

him procedural due process, that the charges of misconduct against him have not been

sufficiently proven, and that any proven misconduct should be mitigated by his inexperience in

office or as a justifiable response to an unprofessional effort by the local public defender to

prevent him from hearing criminal cases. For the reasons stated below we conclude that the

Commission’s recommendation that Judge McCartney be removed from office be rejected but

we further conclude that he be censured.

FN1. All references herein to specific rules are to the California Rules of Court.

FN2. California Constitution, article VI, section 18, subdivision (c) provides: ‘(c) On

recommendation of the Commission on Judicial Qualifications the Supreme Court may (1) retire

a judge for disability that seriously interests with the performance of his duties and is or is likely

to become permanent, and (2) censure or remove a judge for action occurring not more than 6

years prior to the commencement of his current term that constitutes wilful misconduct in office,

wilful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial

to the administration of justice that brings the judicial office into disrepute.’

Following service as a deputy district attorney petitioner was elected a Judge of the Municipal

Court for the San Bernardino Judicial District (Central Division) of San Bernardino County. He

began his six-year term of office on January 4, 1971. As early as late March of that year the

***264 **272 Commission began to receive letters from private citizens and attorneys alleging

that petitioner had engaged in certain unbecoming conduct during a welfare fraud case. After

consideration and examination of these complaints by informal letters of inquiry and a formal

preliminary investigation (rule 904), the Commission charged petitioner with seven general

counts (consisting of numerous subcounts) of wilful misconduct in office (hereinafter wilful

misconduct) and conduct prejudicial to the administration of justice that brings the judicial office

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into disrepute (hereinafter prejudicial conduct). In accordance with the usual procedure (rules

905, 906, and 907) the Commission served its accusatory Notice of Formal Proceedings

(hereinafter notice) containing these charges, petitioner filed a verified answer thereto, and this

court appointed three special masters to take the extensive evidence in this matter. [FN3] After

lengthy confidential hearings upon the *518 original charges and some new allegations added

after the proceedings had commenced, the special masters issued their report summarizing the

evidence for the Commission. The masters found that petitioner had in five specific instances

engaged in prejudicial misconduct, but had not committed any acts of wilful misconduct. Based

on that finding, the master’s report recommended censure.

FN3. We appointed Thomas W. LeSage, Judge of the Superior Court of the County of Los

Angeles (presiding master); William E. McGinley, Judge of the Superior Court of the County of

Los Angeles; and Sam Cianchetti, Judge of the Municipal Court for the Citrus Judicial District of

Los Angeles County.

The hearings in this matter consumed 4 months during which the masters received the testimony

of 175 witnesses and numerous exhibits. The record presented to us for review is comprised of

8,702 pages divided into 67 volumes.

Upon consideration of the master’s report, written objections thereto by both petitioner and the

examiner, and oral arguments, the Commission thereafter filed with this court its own unanimous

findings of fact and conclusions of law. Impliedly rejecting the contrary view of the masters, the

Commission found that petitioner had engaged in Both acts of wilful misconduct and prejudicial

conduct. While the Commission dismissed 15 of the various subcounts against petitioner, it

concluded that each of the general counts in the notice had been fully are partially sustained by

the evidence. Consequently, the Commission recommended to this court that petitioner be

removed from office. [FN4] (Cal.Const., art. VI, s 18.) Pursuant to the provisions of the

California Constitution, petitioner was thereby automatically disqualified from acting as a judge

for as long as the Commission’s removal recommendation remained pending before this court.

(Cal.Const., art. VI, s 18, subd. (a).)

FN4. The Commission’s vote was five for removal and two for censure.

Disputing the Commission’s recommendation, petitioner filed his petition for the instant review.

Beyond challenging the Commission’s removal recommendation on its merits, however, Judge

McCartney also renews before this court certain objections which he repeatedly raised to the

Commission’s jurisdiction and procedures. Contending broadly that the entire proceedings

leading up to the Commission’s recommendation were violative of his constitutional rights,

petitioner specifically asserts that the Commission denied him due process of law in (1) failing to

accord proper notice of its preliminary investigation under rule 904(b), by (2) permitting

amendment to the charges after the commencement of evidentiary hearings, in (3) denying his

demands for public hearing, change of venue, and discovery by deposition, in (4) failing to

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accord him the right to disqualify Commission members, and (5) by neglecting to indicate what

evidentiary standard it applied in reviewing the master’s report.

*519 In our view, these assertions that procedural defects in the Commission’s proceedings

amount to a denial of due process are without merit. The Commission’s **273 ***265 failure,

for instance, to accord Judge McCartney notice of the preliminary investigation into the various

incidents at issue other than the welfare fraud case, as prescribed in rule 904(b), entailed no

fundamental unfairness. In affording a judge ‘reasonable opportunity in the course of the

preliminary investigation to present such matters as he may choose,’ rule 904(b) clearly affords

to the judge more procedural protection than is constitutionally required. At the stage of the

proceedings to which rule 904(b) applies, the Commission clearly has not yet commenced to

perform any adjudicatory function, but is merely attempting to examine citizen complaints in a

purely investigatory manner. [FN5] Accordingly, notice to the judge under investigation as to the

nature of the complaints against him is not compelled as a matter of due process. (See Hannah v.

Larche (1960) 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307.) Hence, relief from the deleterious

effect, if any, of the Commission’s failure to follow rule 904(b) may be secured by petitioner

only upon a showing of actual prejudice. (Cf. Light v. State Bar (1939) 14 Cal.2d 328, 331--332,

94 P.2d 35, wherein the State Bar failed to accord notice as provided by statute; McPheeters v.

Board of Medical Examiners (1947) 82 Cal.App.2d 709, 187 P.2d 116, wherein the board failed

to provide notice of a continuance of hearings.) No such prejudice appears here. The record is

clear that service of the notice detailing all seven general counts of misconduct against him, over

three months before the evidentiary hearings gave petitioner adequate notice of charges and

reasonable time to prepare his defense.

FN5. After the fashion of the Federal Trade Commission, the instant Commission combines

investigatory and adjudicatory functions, conducting a field investigation into the citizen

complaints it has received which may divulge information later used to initiate the formal

adjudicatory hearings against the particular judge under scrutiny. Testimony by the executive

officer of the Commission in this case conclusively establishes that the investigation is entirely

separate from the Commission’s adjudicative role. The sole purpose of the preliminary

investigation is to determine whether there is any factual basis for considering the initiation of a

formal hearing and the incident drafting of a formal accusatory pleading. Furthermore, the

investigation is not conducted by the Commission itself or its staff, but by independent special

investigators from the California Attorney General’s office.

Petitioner’s related assertion that the Commission’s periodic exposure to reports of the

investigation, unchallenged by explanations he would have submitted had it complied completely

with rule 904(b), had a shattering impact upon its impartiality is without any evidentiary

foundation.Hence, *520 the admitted procedural irregularity [FN6] in the Commission’s notice

of the investigation cannot of itself impair the validity of its subsequent recommendation of

removal. (Accord, In re Robson (Alaska 1972) 500 P.2d 657.)

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FN6. Before this court, the Commission candidly concedes that there was no formal compliance

with rule 904(b), except with respect to the LaCroix incident.

Nor does there appear to be any substantial merit in the assertions that petitioner was denied due

process when the Commission, pursuant to its own special rule, limited discovery to items other

than depositions. In requesting the opportunity to take depositions of witnesses (or, in the

alternative, to serve written interrogatories) in addition to the discovery permitted by the

Commission, petitioner sought the discovery expressly authorized by statute (Gov.Code, s 68753

empowering the Commission to order depositions ‘(in) any pending investigation or formal

proceeding’). As matters of discovery are generally within the sound discretion of the initial trier

of fact, however, we consider that the determination as to whether a discovery order shall issue is

within the sound discretion of the Commission.

We cannot say that there has been such an abuse of that discretion here that petitioner was

deprived of due process. ***266 **274 Without deciding which discovery standard--the civil

practice rule requiring a showing of relevance and materiality (Code Civ.Proc., s 2036) or the

slightly more liberal criminal law requirement that the information sought be demonstrated

necessary for a fair trial (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536, 113 Cal.Rptr.

897, 522 P.2d 305)--should apply to the Commission’s proceedings, we believe that it was

incumbent upon petitioner to make some minimal showing of good cause for the depositions.

(See Shively v. Stewart (1966) 65 Cal.2d 475, 481--482, 55 Cal.Rptr. 217, 421 P.2d 65; Brotsky

v. State Bar (1962) 57 Cal.2d 287, 303--304, 19 Cal.Rptr. 153, 368 P.2d 697.) Petitioner made

no showing of good cause whatsoever, entirely failing to support his demand with appropriate

affidavits and making the demand itself so general that the particular witnesses to be deposed

were not even specified. By reason of such lack of clarity in his demand, petitioner has no cause

for complaint that the request was refused.

Equally unfounded is petitioner’s complaint that he should have been accorded an open hearing.

This state has adopted a constitutional policy that proceedings before the Commission shall be

confidential (Cal.Const., art. VI, s 18, subd. (e), authorizing the Judicial Council to ‘make rules .

. . providing for confidentiality of proceedings.’) While such a *521 policy undoubtedly was

adopted in part to protect the particular judge charged with misconduct and might, therefore,

arguably be waived by him, we recognize that the provision for confidentiality also protects

witnesses and citizen complainants from intimidation. Inasmuch as confidentiality is

constitutionally authorized, is based on sound reason, and is imposed in proceedings which are

neither criminal nor before a ‘court of justice’ we perceive no impropriety in the Commission’s

refusal to open the hearings before the special masters to the public. (See Swars v. Council of

City of Vallejo (1949) 33 Cal.2d 867, 873-- 874, 206 P.2d 355; see generally, Woolley v. United

States (9th Cir. 1938) 97 F.2d 258, 262.)

[9][10] We are likewise unpersuaded that there was an abuse of discretion in the Commission’s

refusal to return the proceedings to San Bernardino County. While neither the state Constitution

itself nor the usual statutory venue rules make any provision as to venue for the Commission’s

proceedings, the Judicial Council, in the exercise of its constitutional power to fashion rules of

court, has given the Commission authority to set the time and place for hearings. (Rule 907.)

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Accordingly, we perceive the place of hearing to be discretionary with the Commission.

Furthermore, we find no abuse of that discretion in the Commission’s determination here.

Pomona was the city where the courtroom of the presiding special master was located. It was the

available courtroom nearest to the courthouse in the City of San Bernardino where a rather

undesirable emotioncharged atmosphere prevailed. At the same time, the Pomona location

imposed only minimal inconvenience for the majority of witnesses who resided no more than 24

miles away in San Bernardino. Under these circumstances, the holding of the proceedings in

Pomona was proper (see Gov.Code, s 68751 restricting the Commission’s process to within 150

miles of where witnesses reside).

As to the merit of the contention that the examiner’s amendments to the Commission’s

accusatory pleading after evidentiary hearings commenced was a denial of due process, we need

not address ourselves. While there may be some force to petitioner’s point that the provision for

such amendment in rule 911 bears reconsideration in the light of the subsequent decision in In re

Ruffalo (1967) 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (finding a due process violation in

somewhat similar amendment of the notice of charges in a state bar disciplinary matter), that

issue is not properly before this court. Petitioner’s counsel expressly declined to challenge the

validity of rule 911 before the special ***267 **275 masters and proceeded to answer the new

allegations. Such assertions of procedural defect will not be considered on review in the absence

of a proper objection before the *522 masters or the Commission itself. (Cf. Rosenthal v. Harris

Motor Co. (1953) 118 Cal.App.2d 403, 409, 257 P.2d 1034.)

Also without merit are each of petitioner’s remaining assertions of procedural defect which are

summarily rejected. [FN7]

FN7. Contrary to the assertion of certain amicicuriae that the Commission improperly considered

hearsay evidence, we find the Commission to have been in substantial compliance with rule 909.

Tht rule’s requirement that the Commission must receive only ‘legal evidence’ clearly applies to

hearings, not to the preliminary investigation during which the particular hearsay statements of

which amici complain were taken. The rule was fully observed here in that the only hearsay

evidence received by the special masters was admitted into evidence pursuant to wellestablished

exceptions to the hearsay rule.

We also reject the additional assertions that the Commission’s failure to articulate standards,

imprecision in findings, and rejection of petitioner’s effort to disqualify Commission members

rise to the dignity of a deprivation of due process. In connection with the action of administrative

tribunals similar to the Commission, we have often recognized in the past a presumption that the

administrative body concerned has found the necessary facts based on the evidentiary standards

prescribed by applicable law (e.g., City & County of S.F. v. Superior Court (1959) 53 Cal.2d

236, 251, 1 Cal.Rptr. 158, 347 P.2d 294). We adhere to that presumption here in declining to

assume, in the absence of affirmative evidence to the contrary, that the Commission has ignored

the ‘clear and convincing evidence’ standard which we articulated in Geiler v. Commission on

Judicial Qualifications ((1973) 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1) in making what we

find upon examination to be sufficiently detailed findings of fact. We similarly decline to assume

that the Commission members entertained a prejudice toward petitioner merely because, as he

asserts, they considered the field reports of the Attorney General’s special agents during the

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investigatory stages of the proceedings. No fundamental unfairness or constitutional infirmity is

inherent in such a combination of investigative and adjudicative functions.

Coming then to the merits of petitioner’s case, we proceed to consider whether the allegations of

misconduct against him have been proven ‘by clear and convincing evidence’ sufficient to

sustain them ‘to a reasonable certainty’ (Geiler v. Commission on Judicial Qualifications, supra,

10 Cal.3d 270, 275, 110 Cal.Rptr. 201, 515 P.2d 1).

By way of the numerous subcounts which comprise the seven general counts in its notice, the

Commission has charged that petitioner has engaged in a number of acts constituting wilful

misconduct or prejudicial conduct. It is alleged that petitioner has engaged in a course of

‘intemperate language, displays of uncontrolled temper . . ., and . . . unreasonable verbal abuse’

in criminal cases (count One) which has included the bullying and badgering of pro. per.

defendants in an argumentative manner abusive to their rights and harmful to the reputation of

the judiciary and the administration of justice (count Four). The Commission has further alleged

that petitioner has committed similar ‘displays of anger, improper language, and bullying’ in his

relations with court personnel, to the detriment of a *523 ‘proper working relationship’ between

the judges and personnel in his district and to the harm of the administration of justice (count

Two). Petitioner is also charged with being no less disrespectful to his brothers on the bench,

having allegedly ‘engaged in conduct and language unbecoming a member of the bench . . . and

tending to embarrass the members of the bench in (his) judicial district . . .’ (count Five). The

Commission also alleges that petitioner has been ‘grossly incompetent’ in his relations with

counsel, engaging in ‘improper criticism of counsel, prolonged and unnecessary argument with

counsel, improper colloquy with counsel regarding the filing of affidavits of prejudice . . ., and

badgering (of) . . . counsel . . .’ (count Three). Furthermore, it is alleged that the foregoing

mistreatment of defendants, personnel, and counsel has been coupled with **276 ***268

‘aggravated inefficiency and gross incompetence in conducting court’--including ‘long delays in

issuing rulings from the bench’-- which has resulted in the effective absence of any ‘competent

judicial officer to perform the work normally’ assigned to the judicial position which petitioner

holds and which thereby materially impairs the administration of justice (count Six). Finally, it is

alleged that petitioner has ‘not properly adhered to the judicial function,’ abdicating his judicial

role on several occasions (count Seven).

In accord with our duty to independently evaluate the evidence adduced by the special masters

(Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 276, 110 Cal.Rptr. 201,

515 P.2d 1), we have examined in full detail the record of proceedings before the Commission

with respect to each of the foregoing charges. On the basis of that examination, we find the

majority of the Commission’s findings accurate, adopt them as our own, and enter the pertinent

portions of those which we adopt in the margin. [FN8] As the *524 remaining ***270 **278

Commission findings are rejected, [FN9] we also enter several of our own independent findings

of fact. [FN10]

FN8. The Commission’s findings were as follows:

‘FINDING

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‘1. Respondent is, and since January 4, 1971 has been, a judge of the Municipal Court of the San

Bernardino County Municipal Court District.

‘FINDING (COUNT ONE C)

‘2. In People v. Ornelas . . ., Judge McCartney harassed the defendant by repetitious questioning

and repetitious reference to certain words and conduct of the defendant. Judge McCartney

engaged in unconscionable harassment of defense counsel through repetitious and uncalled for

questioning of the legal position counsel was advancing. Judge McCartney used intemperate

language and engaged in uncalled for and unreasonable verbal abuse of the defendant and

counsel, and gave the impression of bias towards the defendant and her counsel, Lane Stuart.

‘Judge McCartney, throughout the proceeding, acted as an advocate justifying the proceedings

over which he had presided previously rather than as a judge hearing without bias and prejudice

motions made in good faith by counsel for defendant.

‘. . .McC

‘FINDING (COUNT TWO A)

‘3. While presiding during probation and sentence in People v. LaCroix . . . on March 24, 1971,

and after holding Mrs. LaCroix in contempt, Judge McCartney turned to his clerk, Mrs. Carol

Perry, and stated in a loud voice, ‘I heard that. You are in contempt. You are going to jail.’ Mrs.

Perry asked, ‘What did I do? What did I do?’ Judge McCartney shouted, repeatedly, ‘Apologize!

Apologize! Mrs. Perry said, ‘Well, I’m sorry.’ She was not jailed. Mrs. Perry did not say

anything prior to Judge mcCartney’s outburst. Judge McCartney then left the bench, stating that

he was going to see her supervisor. When he returned to the courtroom he shouted, ‘Leave my

courtroom, you’re no longer my courtroom clerk.’ Judge McCartney was obviously angry when

addressing Mrs. Perry, and his language was intemperate. Mrs. Carol Perry did cry in the

courtroom and Judge McCartney did bully Mrs. Perry.

‘. . .gry

FINDING (COUNT TWO B)

‘4. Mrs. Nadine Waymire is the assistant clerk of the San Bernardino Municipal Court. Judge

McCartney entered her office between 2:00 and 2:30 p.m., on March 24, 1971, and said, in a

loud voice, ‘I want another clerk, right now,’ emphasizing each word by pounding his fist loudly

on Mrs. Waymire’s desk. Judge McCartney was upset and angry. . . .

‘. . . po

‘FINDING (COUNT TWO D--1)

‘5. Judge McCartney replaced Judge William Johnstone in the Victorville Division of the San

Bernardino Municipal Court on July 28, 1971. Robert Atkinson, the regular court reporter,

reported the morning proceedings for Judge McCartney. Mr. Atkinson telephoned Mrs. Frances

Rea and requested that she report the afternoon proceedings beginning at 1:30 p.m. Judge

McCartney ordered Mr. Atkinson to return to his court at 1:00 p.m. At 1:08 p.m. Mr. Atkinson

advised Judge McCartney that he was leaving on vacation and would be replaced by another

reporter. Judge McCartney expressed no concern. Mrs. Rea arrived in Judge McCartney’s

courtroom at 1:25 p.m. At appproximately 1:30 p.m. Judge McCartney orally ordered Deputy

Marshal Michael K. Friesen to ‘find Mr. Atkinson, arrest him, and bring him back to the

courthouse.’ Judge McCartney was visibly upset.

‘. . .rie

‘FINDING (COUNT THREE B)

‘8. On June 25, 1971, Judge McCartney spent the court day in a preliminary hearing involving

several counts of bookmaking (People v. Birch and Jennings). During the hearing Judge

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McCartney took several unexplained and unannounced recesses and, on many occasions, took an

inordinate amount of time ruling on objections. After the matter was submitted, and before the

defendants were held to answer, Judge McCartney sat back in his chair for a period of thirty to

forty-five minutes, during which he did not speak but occasionally turned his chair around and

faced the ceiling. This conduct was unexplained and the proceedings in the courtroom came to an

uncertain halt during this period.

‘. . . no

‘FINDING (COUNT THREE D)

‘10. On January 3, 1972, in the case of People v. Anderson, Deputy Public Defender Raymond

Rager appearing on behalf of the defendant, Judge McCartney addressed the following remarks

to Mr. Rager concerning the propriety of the filing of Affidavits of Prejudice by the Public

Defender’s Office:

‘. . . If you think I’m going to take away the dignity of this Court and what the people elected me

to do, then you’re out of your mind.

‘I’ll tell you another thing: Unless I get fairness in this thing, I might be running against other

judges. I’m not going to sit up here and be the butt of abuse of the public defender.

‘If I have to run again, I’m going to run again. I’m going to take this message to the people

because it’s unfair. I’m going to fight. I’m not about to put my tail between my legs. And if I

have to run again for office, I’m going to do it. I’m not going to be pushed around by the Public

Defender’s Office and the abuse and the perversion that they have engaged themselves in

emasculating an elected official of the people.

‘And if you’re ready to do it, I’ll meet you anywhere, any time, any place, buddy, up to the

United States Supreme Court, back down again to the court of public opinion and anywhere else

where justice will stand up.

‘I went to a conference in Monterey . . .

‘This thing is being abused badly, and I’m not about to stand for it, and I’ll fight it every time,

every place, every corner where justice will permit me to do it.

‘You might as well make your mind up to that, mister.’

‘Judge McCartney made the above statement in a loud voice, with flushed face, and appeared to

those present to be angry and excited.

‘. . .McC

‘FINDING (COUNT FOUR C)

‘13. Allan B. Cossentine on January 21, 1972, in the courtroom of Judge McCartney, attempted

to file an Affidavit of Prejudice without knowledge of the appropriate statute. Judge McCartney

asked Mr. Cossentine his reasons for requesting transfer to another department. Mr. Cossentine

stated that he had experience in paramedicine, and that it was his opinion that Judge McCartney

was under intense emotional and nervous pressure. When Deputy Public Defender Friedman

attempted to assist the defendant, Judge McCartney stated that the Public Defender would first

have to be appointed in the case, refusing his proffered assistance as inappropriate interference.

Judge McCartney carried on an irrelevant, unnecessary, argumentative and undignified colloquy

with Mr. Cossentine, a traffic case defendant appearing in propria persona, despite efforts of the

latter not to become so engaged. Judge McCartney further bullied and badgered Mr. Cossentine

and abused his rights, all harmful to the reputation of the judiciary and to the administration of

justice.

‘. . .he

‘FINDING (COUNT FIVE A)

12

‘14. The case of People v. Julia Campbell . . . was called for arraignment and disposition of

certain motions in the courtroom of Judge McCartney on August 25, 1971, at 1:30 p.m. The

defendant, a clerk in the Superior Court of San Bernardino County, was charged with a violation

of Penal Code Section 187 (Murder). Presiding Judge Roy E. Chapman, at approximately 1:30

p.m., through his bailiff, ordered Judge McCartney to transfer the Campbell case to Judge

Chapman’s courtroom. Judge McCartney was on the bench and had called the Campbell case

when he received the order to transfer it. Judge McCartney ordered his bailiff, his court reporter,

Mrs. Faith Hewitt, Clark Hansen, Deputy District Attorney, and Defense Attorneys Paul

Steinman and Richard Beswick, to accompany him to Judge Chapman’s chambers, where, in

their presence, Judge McCartney had a discussion with Judge Chapman regarding the order for

transfer which had been made. This discussion was reported by Mrs. Hewitt. Judge McCartney

spoke in a high-pitched, excited voice and appeared to be angry. His voice was heard in the

adjoining courtroom.

‘. . .ge

‘FINDING (COUNT SIX B)

‘18. On March 17, 1972, during argument on a motion for new trial in People v. Worley, and on

an issue totally irrelevant to the motion, Judge McCartney called both his bailiff and his clerk as

witnesses and questioned them. Judge McCartney then left the bench, entered his chambers,

removed his robe, returned to the courtroom in a suit coat, was sworn as a witness, took the stand

and testified narratively at some length on the same irrelevant issue, during which time there was

no judge on the bench.

‘. . ..b

‘FINDING (COUNT SEVEN A)

‘21. During the period from January to March, 1971, Judge McCartney conferred from time to

time with his bailiff, Marshal John Fink, at the bench, on the subject of the propriety of his

proposed sentencing, immediately prior to his pronouncement of judgment. At Mr. Fink’s

suggestion to make what they were doing less obvious, Judge McCartney later called his bailiff

to the bench, on the pretext of the bailiff’s running an errand, before the two would confer. This

conduct occurred only with respect to defendants appearing in propria persona.

‘. . .y w

‘FINDING (COUNTS SEVEN B--1 and SEVEN B--2)

‘22. On December 10, 1971, Judge McCartney heard a motion by counsel to set aside a guilty

plea in the case of People v. Lujan (. . .), which plea had previously been entered by the

defendant in propria persona. Petitioner was called as a witness, was examined by his counsel,

was cross-examined by the deputy district attorney, and was also cross-examined extensively by

Judge McCartney. At Judge McCartney’s direction a San Bernardino police officer was called as

a witness for the People. Judge McCartney conducted the examination of this witness, during

which he ruled on objections by defense counsel to questions propounded by the Court. Judge

McCartney then stepped down from the bench, removed his robe, put on his suit jacket, and took

the stand as a witness, testifying narratively and at length. At this time there was no judge

presiding over the proceedings. Judge McCartney then removed his jacket, put on his robe and

resumed the bench.

‘Finding No. 18 (Count Six B) is incorporated herein by reference as though set forth in full.

‘In both instances, Lujan and Worley, Judge McCartney became personally involved in the

proceedings. His participation was strongly advocative in nature, was clearly directed in support

of the prosecution’s position, and constituted a partisan effort to defeat petitioner’s position. By

13

testifying in an adversary posture he created the impression that there was no impartial, truth-

seeking judge in the courtroom.’

In addition, we adopt with some modification the Commission’s Finding 15: While at the bench,

Judge McCartney whistled, hummed, and muttered profanities to himself during court sessions.

These utterances were made in lower than conversational, but nevertheless audible, tones. The

profanity was not directed at any individual or individuals but apparently was almost unwittingly

uttered as a personal response to the proceedings. Yet, it was heard by numerous people and the

practice continued after the judge had been informed that his comments were within hearing of

persons in the courtroom.

FN9. The Commission’s findings numbered 7, 11, 12, 16, 17, 19, 20, 23, and 26 are rejected for

the reason that they are conclusory or duplicative of one of those which we have adopted.

Commission findings numbered 6 and 9 are rejected as merely corroborative of finding number

10, involving the judge’s heated reaction to the mass filing of affidavit of prejudice forms.

Finding number 24 is similarly corroborative of the more explicit findings 18 and 22 as to

petitioner’s examination of witnesses. Also rejected is the Commission’s finding 25, which

concerns matters not charged in the accusatory notice and is by its terms merely corroborative of

the central findings.

FN10. We independently find as follows:

Finding No. 1: During a probation and sentencing hearing in People v. LaCroix, a welfare fraud

case, Judge McCartney’s examination of the defendant LaCroix was repeatedly interrupted by

Mrs. LaCroix’ irate and boisterous outbursts. Without shouting, Judge McCartney allowed Mrs.

LaCroix briefly to address the court and then firmly admonished her that she would be ordered

from the courtroom if she continued to interrupt the proceedings. When Mrs. LaCroix thereafter

persisted in her spontaneous outbursts, Judge McCartney--in a voice described by some

witnesses as yelling and screaming--angrily told her to ‘shut up’ or he would hold her in

contempt. At Mrs. LaCroix’ further interruption, Judge McCartney ordered her from the

courtroom. As she was leaving, however, Judge McCartney directed her to return to the bench

where he found her in contempt of court and ordered her immediate arrest and incarceration in

the county jail. In imposing the contempt sentence, Judge McCartney stated to Mrs. LaCroix that

she should have proper respect for the court and refrain from ‘making faces.’

After a brief recess during which he rescinded the contempt sentence, Judge McCartney resumed

the questioning of the defendant. In the course of reviewing prior instances of his fraudulent

conduct, Judge McCartney strongly criticized him for his ‘cheating attitude,’ referring to

LaCroix as a ‘deadbeat.’ He also angrily reprimanded Mr. LaCroix for lying to the court, calling

him a ‘liar’ and a ‘cheat,’ and for bringing his children into the courtroom as a blatant play upon

the court’s sympathy. Throughout the resumed proceedings, Mr. LaCroix became progressively

hostile to the court, loudly and boisterously interrupting the judge. Judge McCartney reacted by

threatening to increase the jail time to 180 days if Mr. LaCroix kept interrupting. Judge

McCartney ultimately entered a modified sentence of 30 days in the county jail.

Finding No. 2: In People v. Myers, a driving-while-under-the-influence-of- alcohol case, the

defendant entered a guilty plea before Judge McCartney and was sentenced. Before the plea was

accepted, Judge McCartney fully advised Myers of his constitutional rights, including his right to

14

enter a plea of not guilty. After adjournment of court for the noon recess, Myers approached

Judge McCartney in the courthouse hallway and casually inquired about the availability of a

blood alcohol test. Judge McCartney thereupon directed Myers to, ‘get in this courtroom or I’ll

have you arrested.’ After Myers re-entered the courtroom, Judge McCartney severely

reprimanded him for accosting the court in the hallway and continued his case until the afternoon

because no reporter was immediately available. In the subsequent proceedings Judge McCartney

vacated the plea of guilty over Myers’ protests and granted a continuance for the arraignment so

that Myers could secure counsel.

Finding No. 3: While hearing an offer of proof in chambers in the case of People v. Worley,

Judge McCartney muttered ‘god damn son-of-a-bitch’ under his breath. Although audible to

counsel, these utterances were not directed toward any individual.

Finding No. 4: Throughout his harassment of the defendant in People v. Ornelas, Judge

McCartney assumed the role of an advocate in attempting to establish that he had treated the

defendant fairly when she had previously appeared before him in pro. per. Although counsel was

present for both the People and the defendant, the judge extensively questioned the defendant

from the bench. Rather than directing inquiry to the material issue of the defendant’s

understanding of certain waivers she had signed previously in entering a plea, he examined her

as to such irrelevant matters as her attitude toward him as a judge and her past conduct of bearing

several illegitimate children. Judge McCartney thereby so seriously compromised his

impartiality that he was subsequently restrained from proceeding further by the superior court.

Finding No. 5: Judge McCartney has engaged in delays in issuing rulings on numerous

occasions. Indeed, he has been observed to routinely sit back in his chair, with his face tilted

toward the ceiling and his eyes closed, to contemplate the most ordinary evidentiary objections.

At these times, the judge meditated for 3 to 15 minutes at a time while the unrecessed courtroom

remained in silence.

*525 These adopted and independent findings may be briefly summarized, along with certain

supplementary facts drawn from ***271 **279 the record itself as *526 follows: We perceive

clear nd convincing evidence that in one welfare fraud case petitioner angrily told a pro. per.

defendant’s wife to ‘shut up’ or be held in contempt when she persisted in making a series of

boisterous outbursts which interrupted the proceedings. In the same case, petitioner *527

strongly criticized the pro. per. defendant, alleging that he had previously perpetrated frauds and

stating that in an attempt to evoke the court’s sympathy, he had brought his children to court. For

an apparent misrepresentation *528 to the court, petitioner called the defendant a ‘liar,’ ‘cheat,’

and ‘deadbeat.’ Petitioner also responded to the latter’s boisterous interruptions at the sentencing

by angrily threatening to triple the jail sentence.

There are three other similar instances. Petitioner told another pro. per. defendant, who had

previously appeared before him to plead guilty to a drunk driving charge, to ‘get in (the)

courtroom or I’ll have you arrested’ when that defendant approached him in the courthouse

hallway during the noon recess to casually inquire about the availability of a blood-alcohol test.

In hearing a motion for withdrawal of a prior guilty plea in another case, petitioner harassed a

defendant and her counsel by extensively examining her as to several irrelevant matters in a

furious argumentative ‘Perry Mason type of dialogue.’ In a fourth case, where a pro. per.

defendant sought the transfer of his case to another court because Judge McCartney seemed

15

emotionally upset, Judge McCartney engaged in a verbal attack upon the defendant with respect

to his experience as a paramedic in a deliberate effort to embarrass the defendant or provoke him

into a contemptuous response.

There is also clear and convincing evidence that, during the hearing of *529 the previously

**280 ***272 mentioned welfare fraud case, petitioner for no apparent reason furiously

threatened to hold his court clerk in contempt shouting at her to ‘Apologize! Apologize!’ He

subsequently discharged her as his clerk in such a violent manner as to leave her crying at her

desk in the courtroom. Following the incident, petitioner went to the office of the supervising

assistant clerk of the court. Once there, he loudly demanded ‘another clerk, right now’ while

pounding the supervisor’s desk with his fist. Petitioner was equally arbitrary with court personnel

when sitting at nearby Victorville. There, in the courtroom, petitioner ordered the arrest of a

court reporter after the reporter had arranged for a replacement for the afternoon session, had

advised petitioner that he had done so, had departed for his annual vacation, and the replacement

had arrived 25 minutes later than expected.

The record further includes clear and convincing evidence that almost immediately after

petitioner took office the local public defender’s office began to file ‘blanket’ affidavits of

prejudice against him for reasons that are not entirely apparent. In reaction, Judge McCartney

engaged in angry and excited dialogues with deputy public defenders who filed the affidavits. In

the course of these arguments, petitioner on one occasion threatened to ‘fight’ the office. In

doing so, the judge told one deputy: ‘I’ll meet you anywhere, any time, any place, buddy, up to

the United States Supreme Court . . .. You might as well make up your mind to that, mister.’ On

another occasion, Judge McCartney displayed similar hostility to a private defense attorney who

attempted to file an arguably untimely affidavit of prejudice.

We find, in addition, clear and convincing evidence that petitioner challenged the transfer of a

preliminary hearing on a murder case that was about to commence in his courtroom by calling a

recess, taking court personnel and counsel to the presiding judge’s chambers and there, in the

presence of court personnel and counsel, angrily demanding an explanation for the transfer from

the presiding judge.

During an in-chambers offer of proof in a prostitution case, petitioner muttered profanities under

his greath in what appeared to be a self-directed, personal emotional release. He has similarly

whistled, hummed, and muttered profanities to himself on numerous occasions while at the

bench when court has been in session.

The record also contains clear and convincing evidence that petitioner has held benchside

conferences with one of his bailiffs in sentencing pro. per. defendants in traffic and misdemeanor

cases. The record also discloses, and we deem it a fact, that the court actually imposed some of

the sentences which the bailiff fashioned.

*530 Moreover, the judge in several cases extensively examined witnesses-- often over

objection of counsel--in the manner of an advocate. In conducting such examinations he ruled on

counsel’s objections to questions which he himself propounded, thereby assuming an adversary

posture antithetical to the impartial conduct of court proceedings. These examinations also

16

expended judicial time on matters collateral or entirely irrelevant to the cases before him. While

the examination of witnesses by the court was sometimes necessitated by the unavailability of

deputy district attorneys, [FN11] petitioner did not hesitate to engage in such examination even

when counsel was present.

FN11. It is unmistakable from the record that throughout 1971 and 1972 the San Bernardino

District Attorney’s office did not have sufficient personnel to handle all matters upon which the

People required representation.

In addition, petitioner in at least two cases stepped down from the bench, removed his robe, and

took the stand. As a witness he then testified at length in a narrative form, leaving the court

without a presiding officer to rule upon objections.

***273 **281 Finally, we find clear and convincing evidence that petitioner, while on the

bench, has taken frequent and excessively lengthy unexplained pauses during which he

meditated with his eyes closed while the unrecessed courtroom waited in silence. This has

occurred before the rulings on ordinary evidentiary objections and other relatively uncomplicated

matters.

Viewing the facts as we have found them in their totality, we agree with the Commission that

the factual allegations of each of the seven general counts have been sustained ‘to a reasonable

certainty.’ (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 275, 110

Cal.Rptr. 201, 515 P.2d 1.) We must, therefore, proceed to decide whether the conduct on

petitioner’s part which we have found to have occurred constituted ‘wilful misconduct in office’

or ‘conduct prejudicial to the administration of justice that brings the judicial office into

disrepute’ within the meaning of California Constitution, article VI, section 18. (Geiler v.

Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 276, 110 Cal.Rptr. 201, 515 P.2d

1.) In approaching that question, we are mindful that the decisional law on this subject remains in

its infancy. As we observed in Geiler v. Commission on Judicial Qualifications, supra, the

judiciary in this state has fortunately been of such quality that we have been confronted with few

censure or removal recommendations from the Commission.

In removing a judge from the bench in the recent decision of Geiler v. Commission on Judicial

Qualifications, supra, this court attempted for the first time to fashion an operable definition of

the offenses ‘wilful misconduct’ *531 and ‘conduct prejudicial to the administration of justice . .

..’ We there stated that: ‘. . . the Commission in the instant matter concluded that the conduct

proven in the previously discussed specifications constituted ‘wilful misconduct in office’ and

‘conduct prejudicial to the administration of justice that brings the judicial office into disrepute.’

As we have noted above, the second ground for imposing discipline was added to the

Constitution in 1966. We believe this mandates our construing ‘wilful misconduct in office’ as

connoting something graver than the ‘lesser included offense’ of ‘conduct prejudicial to the

administration of justice that brings the judicial office into disrepute.’ The more serious charge

should be reserved for unjudicial conduct which a judge acting in his judicial capacity commits

in bad faith, while the lesser charge should be applied to conduct which a judge undertakes in

17

good faith but which nevertheless would appear to an objective observer to be not only

unjudicial conduct but conduct prejudicial to public esteem for the judicial office.’ (Geiler v.

Commission on Judicial Qualifications, supra, 10 Cal.3d at pp. 283--284, 110 Cal.Rptr. at p. 209,

515 P.2d at p. 9.) Moreover, we went on to hold that the term ‘bad faith’ was intended to connote

that a judge had ‘intentionally committed acts which he knew or should have known were

beyond his lawful power,’ engaging in a ‘pervasive course of conduct of overreaching his

authority.’ (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 286, 110

Cal.Rptr. at p. 211, 515 P.2d at p. 11.)

Applying those principles to the facts of the present case, we are of the opinion that petitioner’s

angry criticism of public defenders for filing affidavits of prejudice may reasonably be deemed

to constitute ‘wiful misconduct’ in office. His threat to ‘fight’ the office was not the only

invectice hurled at the public defender’s office. The judge also branded the affidavit filings a

‘libel’ and ‘slander’ on the court. His remarks were thus obviously volitional. The decisive issue,

then, is whether such criticisms were acts which the judge should have known were beyond his

lawful authority. We believe there is no question that petitioner overreached his authority and

should have known that he was doing so.

It is well recognized that in enacting Code of Civil Procedure section ***274 **282 170.6 the

Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is

‘automatic’ in the sense that a good faith Belief in prejudice is alone sufficient, proof of facts

showing actual prejudice not being required. (E.g., Pappa v. Superior Court (1960) 54 Cal.2d

350, 353, 5 Cal.Rptr. 703, 353 P.2d 311; Mayr v. Superior Court (1964) 228 Cal.App.2d 60, 63,

39 Cal.Rptr. 240.) Accordingly, the rule has developed that, once an affidavit of prejudice has

been filed under section 170.6, the court has no jurisdiction to hold further proceedings in the

matter except to inquire into the timeliness of the affidavit or its technical *532 sufficiency under

the statute. (See, e.g., Andrews v. Joint Clerks, etc., Committee (1966) 239 Cal.App.2d 285, 293-

-299, 48 Cal.Rptr. 646, upholding court’s power to inquire as to timeliness; Lewis v. Linn (1962)

209 Cal.App.2d 394, 399--400, 26 Cal.Rptr. 6, upholding court’s power to inquire into

sufficiency.) When the affidavit is timely and properly made, immediate disqualification is

mandatory. (Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190, 1 Cal.Rptr. 9, 347 P.2d 9.)

Hence, petitioner was bound to accept proper affidavits without further inquiry. A fortiori, his

vehement criticism of public defenders for exercising such statutory power was clearly improper.

(Cf. Calhoun v. Superior Court (1958) 51 Cal.2d 257, 331 P.2d 648, holding improper a trial

court’s striking of a Code Civ.Proc., s 170 statement as a ‘sham’ and ‘frivolous.’) Moreover, the

highly personal hostility for the public defender’s office which petitioner expressed in doing so

was absolutely inappropriate. Precisely the same sort of abuse of position evident in a judge’s

arbitrary substitutions of counsel met with our condemnation as wilful misconduct in Geiler. As

this court has noted in respect to the exercise of contempt powers, ‘(a) judge should bear in mind

that he is engaged, not so much in vindicating his own character, as in promoting the respect due

to the administration of the laws. . . .’ (People ex rel. Field v. Turner (1850) 1 Cal. 152, 153.)

Equally reprehensible are the repeated and flagrant abdications of judicial functions engaged in

by petitioner. These we also deem to be ‘wilful misconduct’ in office. For example, petitioner’s

benchside sentencing conferences with his bailiff were in clear disregard of the most

fundamental concepts of our legal system. By the bailiff’s own admissions it was established that

18

he directly participated in the sentencing process by proposing sentences to the court which the

court, then immediately pronounced upon various pro. per. defendants, and in effect thereby

delegated to a nonjudicial officer a power to impose punishment constitutionally vested in the

judiciary. He thus deprived the defendants involved of a proper trial in the sentencing stage of

the proceedings. (See In re Lee (1918) 177 Cal. 690, 693, 171 P. 958.) Such delegations of

judicial authority to another, even if for momentary intervals, are unconstitutional and directly

run afoul of previous decisions of this court holding very similar delegations of judicial powers

to bail bondsmen to be censurable ‘wilful misconduct.’ (In re Chavez (1973) 9 Cal.3d 846, 109

Cal.Rptr. 79, 512 P.2d 303 and In re Sanchez (1973) 9 Cal.3d 844, 109 Cal.Rptr. 78, 512 P.2d

302, both censuring judges for furnishing presigned release orders to local bondsmen.)

Even if the bailiff’s suggestions to the judge did not ultimately find their way into the actual

sentence imposed, the visual image of the bailiff’s active *533 presence at the bench

immediately prior to sentencing undoubtedly carried the appearance that the baliff had joined in

the fashioning of the sentence (excepting, of course, those instances in which the court adopted

the unconscionable subterfuge of ostensibly calling the bailiff to the tench to run errands). That

appearance of impropriety should have been avoided in light of canons of judicial conduct with

which petitioner was most certainly familiar.

As transparently injudicious as his sentencing conferences was Judge McCartney’s periodic

assumption of the role of an advocate. His extended examinations **283 ***275 of witnesses

appear to have been particularly destructive of the image of the court as an impartial forum for

the determination of truth. Although we appreciate the difficult position into which the San

Bernardino judiciary was placed by a shortage of deputy district attorneys at the time, we are

compelled by overwhelming evidence to conclude that petitioner’s questioning went far beyond

the bounds of judicial propriety.

Incident to his duty to conduct proceedings with a view toward the effective ascertainment of

truth (Pen.Code, s 1044), a trial judge possesses inherent power to examine witnesses to elicit or

clarify testimony (e.g., People v. Rigney (1961) 55 Cal.2d 236, 241, 10 Cal.Rptr. 625, 359 P.2d

23). Additionally, we have previously observed that ‘(t)he mere fact the judge examined . . . at

some length does not establish misconduct.’ (People v. Corrigan (1957) 48 Cal.2d 551 at p. 559,

310 P.2d 953 at p. 958.) A trial judge may Not, however, in the course of examining witnesses

become an advocate for either party or cast aspersions or ridicule upon a witness. (People v.

Rigney, supra, 55 Cal.2d at p. 241, 10 Cal.Rptr. 625, 359 P.2d 23, and cases cited therein.)

Moreover, he should properly undertake the examination of witnesses ‘only when it appears that

relevant and material testimony will not be elicited by counsel.’ (Id. at p. 243, 10 Cal.Rptr. at p.

629, 359 P.2d at p. 27.) Clearly these latter limitations have been persistently ignored by

petitioner. Perhaps the most flagrant instance was his embarcation in one disturbing- the-peace

case upon an argumentative dialogue devoted to a wholly irrelevant inquiry about the testifying

defendant’s illegitimate children and her attitude toward him as a judge.

Aside from raising such collateral matters in a manner approaching ridicule, the judge directed

his inquiry in other cases clearly to support the prosecution’s position. Petitioner’s calling of

witnesses Sua sponte exhibits the same impropriety. As with examination, a trial court has

unquestioned inherent power to call witnesses (Evid.Code, s 775) where the interests of justice

19

require. But that power is subject to a limitation that it be impartially exercised (accord, Law

Revision Com. comment to Evid.Code, s 775 (Deering’s 1966)) which was clearly exceeded

here.

*534 Similarly devoid of proper respect for limitations upon the exercise of judicial power are

petitioner’s assumptions of the stand as a witness in cases over which he presided. As there is no

indication in the record that counsel in those cases objected to his testimony, we may assume that

the judge had discretion to testify as provided in Evidence Code, section 703, subdivision (d).

The judge utterly neglected, however, to comply with the requirement of subdivision (a) of

section 703 that he inform counsel of the substance of his impending testimony. Instead,

petitioner removed his robe and impulsively stepped from the bench to commence an unexpected

discourse. Furthermore, the self-serving and partisan nature of his testimony on each occasion

effectively rendered his decision to take the stand an abuse of discretion. As the record indicates,

the evidentiary objections to his statements were ruled upon by the judge himself, his narrative

form of speaking tended to discourage cross-examination, and his remarks clearly reflected a

partisan attitude. These characteristics of judicial testimony are precisely those which Evidence

Code, section 703 was designed to discourage (see Legislative Committee comment to

Evid.Code, s 703). Additionally, though the subject of this testimony was invariably of marginal

relevance, it bore on issues that were more than merely formal or undisputed and was also

improper for that reason. (See Wigmore on Evidence, s 1909, at p. 592.)

Examining the remaining incidents which we have found to be established in light of the

controlling Geiler principles, we further conclude that the conduct which has prejudiced the

administration of justice and cast the judicial offfice **284 ***276 into disrepute is petitioner’s

proven intemperance with court personnel, defendants in criminal cases, and attorneys. The

judge’s pertinent dialogues were clearly injudicious and undoubtedly damaging to the esteem for

the judiciary held by members of the public who observed such conduct. The fact that these

volatile outbursts lacked the extreme vulgarity apparent in the court’s treatment of counsel and

personnel in Geiler does not mean that they are any less deserving of our unhesitant reproach.

(See, e.g., People v. Black (1957) 150 Cal.App.2d 494, 499--503, 310 P.2d 472, reversing

conviction for judicial misconduct; Etzel v. Rosenbloom (1948) 83 Cal.App.2d 758, 762--765,

189 P.2d 848, civil judgment reversed for judicial misconduct; see also, the account of the Tenth

Circuit Judicial Council’s removal of Judge Stephen S. Chandler from the bench in Note, The

Chandler Incident and Problems of Judicial Removal (1967) 19 Stan.L.Rev. 448 at p. 450,

indicating that Judge Chandler (inter alia) singled out one defendant as a ‘son of a bitch’ and

others as ‘shady characters, pirates, and vultures.’)

Although we thus conclude that the majority of the formal charges *535 against petitioner are

true and, in those instances we have indicated, are based on acts which constitute either wilful or

prejudicial misconduct, we decline to further conclude that other conduct on his part which we

have found proven by the evidence is of such character. These other actions we consider less

than desirable judicial behavior, but not sufficiently reflective of ‘bad faith’ or a diminution in

public esteem to constitute cause for discipline by this court.

The conduct and language engaged in by petitioner which tended to embarrass the other judges

in his district is, in our view, repugnant to the venerable tradition that judges share the bench as

20

brethren in a spirit of mutual respect and courtesy. That customary deference was unjustifiably

shattered by petitioner’s demand for an explanation regarding the transfer of a hearing in

connection with a murder case in the presence of lawyers and court attaches. The disrespectful

confrontation with the presiding judge was surely an uncalled-for embarrassment to the latter,

and most certainly appeared injudicious to observing court personnel and lawyers. Yet, there has

been no showing that Public esteem for the judicial office was substantially impaired by that

apparently isolated incident. Hence, the incident could not comprise the lesser offense of

prejudicial conduct.

We entertain a similar view with respect to the muttered profanity and humming. We strongly

deplore such whistling, humming, and swearing as unbecoming, injudicious, and unsuited to the

proper decorum of a courtroom. Nevertheless, we somewhat reluctantly find ourselves unable to

say in view of all the circumstances that this misconduct was so serious as to rise to the level of

an offense or acts warranting removal or censure. The record is unequivocal that petitioner

engaged in such conduct unintentionally, indeed almost unconsciously, in low tones and

apparently as a matter of emotional release. Unlike the vulgar and profane expletives which we

declare a cause for removal in Geiler, the profanities uttered here were relatively isolated and

were not directed as a reprimand to court personnel, attorneys or any other specific individuals.

In essence, the ‘music’ and expletives were apparently ‘self-utterances’ unintended for anyone to

hear but the judge himself. Accordingly, while petitioner’s utterances might be characterized as

erratic and are not to be condoned as proper judicial behavior, they cannot be said to have been

‘wilful’ or to have actually prejudiced the administration of justice in the sense of drawing the

courts into public disesteem. (Cf. Eaton v. City of Tulsa (1974) 415 U.S. 697, 94 S.Ct. 1228, 39

L.Ed.2d 693 holding the isolated usage of street vernacular during a defendant’s testimony, not

directed to the judge or any officer of the court and not presenting any impairment to the

administration of justice, **285 ***277 to be an insufficient basis for the imposition of a

contempt sentence.)

*536 Somewhat more difficult for us to resolve has been the question whether petitioner’s

inefficiency in conducting court qualifies as a ground for discipline. Beyond the languor found

by the Commission to be attributable to petitioner’s frequent silent meditations, the record is

replete with clear evidence of chronic delay in his courtroom. As master calendar judge, for

example, he habitually ran far behind the normal time schedule in assigning cases and thereby

caused such losses of trial time that a backlog of cases for the whole district was increased.

Likewise, in handling his own assignments petitioner routinely fell behind schedule: he often

failed to complete small claims hearings and custody arraignments during the morning as

required by the presiding judge; trials in his courtroom frequently ran into the evening, some as

late as midnight; and law and motion matters which counsel expected to receive summary

disposition at the bench became unduly involved proceedings requiring long and arguably

unnecessary in-chambers consultations. Not only did this absence of expeditiousness in the

dispatch of judicial business place considerable strain on the municipal court calendar, but it also

resulted in security, budgetary and manpower problems. Yet, the record is equally clear that this

pattern of delay stemmed from no dereliction of duty. Indeed, petitioner has at all times made a

conscientious and determined effort to conduct his share of the affairs before the court. Rather

than arising from any neglect of responsibility, his inefficiency appears to stem from an effort to

attain a degree of diligence and studiousness in the application of the law which was unrealistic

21

and frequently unjustified. Abundantly evident in the testimony of lawyers before the special

masters is the opinion that undue caution and excessive attention to detail in all matters before

him, even those of minor importance, is at the root of petitioner’s inability to conduct court

effectively.

On this state of the record, we believe petitioner’s inefficiency has not been shown to be so

serious as to warrant censure or removal on that ground. Here, the petitioner’s shortcomings in

the dispatch of judicial business involve no dereliction of responsibility and such shortcomings

cannot be condemned as injudicious behavior. In a sense, the image conjured up by petitioner’s

handling of judicial tasks is somewhat reminiscent of the fog- mired ‘High Court of Chancery’ in

Dickens’ Bleak House which was so dedicated to the intricacies of ‘Justice’ that the estates

probated before it were entirely depleted by court costs and legal fees. That infamous

inefficiency, so well depicted by Dickens, was hardly cause for dispensing with the Lord

Chancellor. Instead, it became the subject for reform in the Chancery’s cumbersome procedures

(e.g., Holdsworth, Bleak House and the Procedure of the Court of Chancery in Voices in Court at

pp. 363--377 (W. Davenported. *537 1958)). The inefficiency beclouding petitioner’s court, we

believe, should similarly be dealt with as one of several problems in local court administration.

These are by tradition more properly committed for their solution to the sound judgment of the

presiding judge of the district (see rule 532.5) rather than to this court in the exercise of its

disciplinary powers. Such a result seems particularly appropriate in light of the testimony by his

fellow judges, who were generally critical of his penchant for exhaustive detail, that petitioner’s

excessive care in accepting tendered guilty pleas might be preferred to the more ‘efficient’

summary approval of plea bargains having unconscionable terms. [FN12]

FN12. We are also impelled toward the conclusion that a judge should not be disciplined for

inefficiency absent proof of dereliction of duty by reference to the impeachment trial of Judge

James H. Hardy during the early history of this state. In that case, articles of impeachment

charged Judge Hardy, the then ‘district judge’ for Calaveras County, with ‘causing great delays

in the transaction of judicial business’ by (inter alia) granting unwarranted continuances and in

failing to rule expeditiously on various motions. These charges of inefficiency were dismissed by

the state Senate for lack of evidence that the judge wilfully neglected to perform the duties of his

office. (Appendix to Journals of Sen. and Assem., No. 36 (13th Sess. 1861--1862).)

Our foregoing conclusions of law, insofar as petitioner is deemed to have en ***278 **286

gaged in wilful misconduct and conduct prejudicial to the administration of justice, compel us to

squarely face the question whether removal or censure is an appropriate sanction. While arguing

for an outright dismissal of charges, petitioner also submits that ‘at worst, (he) should be

censured, but not removed’ from office. In that connection, he urges this court (inter alia) to

excuse his misconduct as an understandable reaction to an improper campaign by public

defenders to entirely preclude him from presiding over criminal trials.

We find this ‘defense’ to be a slim reed at best. In the first place, the argument is simply no

answer to petitioner’s serious departures from a proper judicial role or his habitual intemperance

toward defendants and court personnel. The benchside sentencing conferences with his bailiff,

22

for example, usually took place when no counsel was present. Hence, they were entirely

unrelated to any filing of affidavits of prejudice by public defenders.

More reason for rejection fo the argument, however, is that it is utterly without exculpatory

force even as to petitioner’s outbursts at public defenders. It is true, as petitioner asserts, that the

record contains some evidence suggesting that the public defender’s deputies pursued the filing

of affidavits with occasional disrespect to the court. In fact, the entire policy *538 itself May

have been an affront to the court’s dignity if it stemmed from public defenders’ dissatisfaction

with petitioner’s ‘hard line’ performance as a district attorney rather than a good faith belief in

prejudice. [FN13] But, even assuming arguendo ***279 **287 that the evidence was clear and

convincing, disrespect on the part of the public defender cannot serve to justify petitioner’s

injudicious response. As previously indicated, the Legislature clearly foresaw that the

peremptory challenge procedure would be open to such abuses but intended that the affidavits be

honored notwithstanding misuse. (See Johnson v. Superior Court (1958) 50 Cal.2d 693, 697, 329

P.2d 5; Mayr v. Superior Court, supra, 228 Cal.App.2d 60, 64, 39 Cal.Rptr. 240.)

FN13. Soon after petitioner began his term of office the local public defender established an

inter-office policy of filing affidavits of prejudice against him. A written statement requiring

affidavits to be filed ‘on all trials’ assigned to petitioner was first circulated within the public

defender’s office on January 25, 1971. Thereafter, on May 26 and 27, 1971, the policy was

expanded to require that, ‘(an) Affidavit of Prejudice shall be used for all trials, preliminaries,

arraignments, bail settings and any other appearances which require an act of judicial discretion.’

Pursuant to this policy, approximately 205 affidavits were filed by deputy public defenders

against petitioner between July of 1971 and March of 1972.

‘While there is some evidence to suggest that this policy was adopted as part of a concerted

effort on the part of public defenders to remove petitioner from the bench, there is an equally

strong suggestion that it was rooted in legitimate concerns that the judge would be partial to the

prosecution or would take an inordinate amount of time in trying their cases. Accordingly, we

are unable to arrive at any definite conclusion about the precise basis for the policy.

The blanket nature of these filings, however, in itself reflects a measure of impropriety. As the

objective of a verification is to insure good faith in the averments of a party (e.g., Hoffman v.

City of Palm Springs (1959) 169 Cal.App.2d 645, 648, 337 P.2d 521), the provision in Code of

Civil Procedure section 170.6 for the showing of prejudice by affidavit requires a Good faith

belief in the judge’s prejudice on the part of the individual party or counsel filing the affidavit in

Each particular case. (See Johnson v. Superior Court (1958) 50 Cal.2d 693, at p. 697, 329 P.2d 5,

indicating the affidavit of prejudice must be a good faith declaration; accord Berger v. United

States (1921) 255 U.S. 22, at pp. 33--35, 41 S.Ct. 230, 65 L.Ed. 481, holding that substantially

similar federal Judicial Code section 21 was satisfied by a Good faith allegation of prejudice; see

generally Austin v. Lambert (1938) 11 Cal.2d 73, 77 P.2d 849, holding invalid the predecessor

section to current 170.6 and emphasizing the need of a provision that would require an averment

of prejudice under oath, as required by federal law, in order to insure good faith.) The ‘blanket’

nature of the written directive issued by the public defender arguably contravened this

requirement of Good faith by withdrawing from each deputy the individual decision whether or

not to appear before petitioner. To phrase it another way, the office policy predetermined that

prejudice would be claimed by each deputy without regard to the facts in each case handled by

23

the office, thereby transforming the representations in each affidavit into bad faith claims of

prejudice.

Moreover, even if the conduct of the public defenders was clearly contemptuous, petitioner’s

vehement expressions of personal hostility were *539 absolutely improper. A judge must not, as

previously noted, place the defense of his own character above his obligation to promote respect

for the law in adjudicating contempts of court (e.g., Taylor v. Hayes, Judge (1974) 418 U.S. 488,

94 S.Ct. 2697, 41 L.Ed.2d 897, strongly criticizing a district judge for trying a contempt when he

exhibited ‘marked personal feelings’ of hostility toward the contemptuous lawyer). If petitioner

thus could not vent his personal animosity in the face of contemptuous conduct, he certainly

could not do so in the face of any disrespect attendant to the public defender’s affidavit of

prejudice policy. No matter how provocative are the personal attacks or innuendos by lawyers

against a judge, the judge simply ‘should not himself give vent to personal spleen or respond to a

personal grievance’ because ‘justice must satisfy the appearance of justice.’ (Mr. Justice

Frankfurter writing for the Court in Offutt v. United States (1954) 348 U.S. 11, 14, 75 S.Ct. 11,

13, 99 L.Ed. 11; see also Cooke v. United States (1925) 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69

L.Ed. 767 admonishing judges to ‘banish the slightest personal impulse to reprisal’ in protecting

the authority of the court.)

We find much more persuasive petitioner’s additional argument that the court should be lenient

in view of his inexperience on the bench. Unlike Judge Geiler who engaged in misconduct after

almost a half-decade on the bench, petitioner had held his office for barely more than a year and

a half before he was accused of misconduct. Notwithstanding his many years in the practice of

law, he was undoubtedly unfamiliar with some modes of proper judicial behavior necessarily

learned only by judicial experience. It is therefore conceivable that some of his prejudicial

conduct may have been the product of such ignorance.

Even more salutary, however, was petitioner’s unusual care in attempting to ‘do justice’ in the

cases before him. In advising criminal defendants of their constitutional rights at arraignment, he

took extraordinary measures to insure that defendants understood the procedural protections

accorded them. He prepared a detailed arraignment statement, had it translated into other

languages when defendants did not speak English, and added a simple primer of trial procedure

for defendants who appeared at trial in pro. per.

At the same time, petitioner strove for fundamental fairness in his sentencing. Where a jail

sentence for a minor misdemeanor violation might result in defendant’s loss of employment he

imposed a weekend sentence. If a fine was to be imposed upon a defendant for whom payment in

one sum would be unduly harsh, petitioner often permitted payment by installment deductions

from the defendant’s weekly salary over a period of time. He was liberal in assigning first-time

vehicle offenders to traffic school. *540 He has also showed unusual initiative in creating

opportunities for rehabilitative treatment of alcoholic defendants. He personally established a

system whereby the municipal court judges could routinely refer alcoholics to local Alcoholics

Anonymous programs and monitored the defendants’ participation in rehabilitation. This careful

and dedicated approach to even the most minor traffic cases was an admirable contrast to the

‘assembly-line justice’ dispensed by some trial courts which is now ***280 **288 drawing

24

increasing public criticism (see Green, Judging the Judges, The Wall Street Journal (March 7,

1974)). Such obvious commitment to fairness and innovative procedural reform on the part of a

judge is to be encouraged and may therefore properly be considered by this court in mitigation of

proven misconduct when we are called upon by the Commission to fashion a disciplinary

sanction.

In apparent deference to these mitigating factors, the masters recommended to the Commission

that petitioner only be censured for his conduct prejudicial to the administration of justice in the

five instances which they had specified. Their recommendation, as we took care to point out in

Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at pages 275--276, 110

Cal.Rptr. 201, 515 P.2d 1, is entitled to considerable weight in view of the masters’ better

position to judge the credibility of the testimony presented to them. We believe the masters’ view

is especially entitled to that consideration here because the record evinces constructive

contributions by petitioner which tend to offset some of the deleterious effects of his misconduct.

We therefore conclude that the recommendation of the Commission should be rejected, and that

censure is the appropriate result. We cannot stress too strongly that were it not for the redeeming

qualities which we have mentioned we would be inclined to agree with the Commission’s

recommendation of removal. But upon our review of the record as a whole we are satisfied that

censure is appropriate in this case. Accordingly, we hereby enter an order of censure of Judge

James J. McCartney for his injudicious conduct and admonish him to desist from engaging in

such misconduct. This order is final forthwith.

116 Cal.Rptr. 260, 12 Cal.3d 512, 526 P.2d 268

END OF DOCUMENT

issued checks, the judge did not disclose that information. Attorneys negotiating on behalf of

the bank were unaware of the inadvertently issued checks. The bank later discovered that it had

inadvertently issued the eight checks to the judge and requested that the judge return the money.

The judge refused, and the bank sued. After a non-jury trial, a judgement was entered against the

judge for $32,000, plus interest and costs. The trial court found that the judge’s failure to

disclose during settlement negotiations in the first action that he had cashed inadvertently issued

checks was “an intentional concealment of a material fact, unknown to the plaintiff, which the

defendant was under duty to disclose, when specifically asked.” The court further found that the

judge’s “acts of receiving, cashing and steadfastly refusing to return the amount of the checks

when demanded constitutes malice and fraud.”

Inquiry Concerning Broadman, Decision & Order Imposing Public Admonishment (California

Commission on Judicial Performance February 26, 1999)

The California Commission on Judicial Performance publicly censured a judge for

denying due process in a civil trial, argumentative questioning of a minor in a contempt

proceeding, and labeling a lawyer “unethical and dishonest.”

(1) After calling a case for trial, the judge asked the parties to tell him what the case was

about. After the plaintiff spoke, the defendant’s attorney gave a version of his opening

statement, and the defendant made a statement. The judge then alternated asking the parties

25

questions. No one was placed under oath. After questioning the plaintiff and the defendant, the

judge asked if either of them had anything else to add. He then told them that he was taking the

case under submission and asked the defendant’s attorney to prepare a statement of decision and

judgement. The judge did not state that he was going to follow an alternative procedure nor that

the parties could have a traditional trial if they wanted one. The judge signed a statement of

decision and judgement prepared by the defendant’s attorney in favor of the defendant.

The Commission found that the judge committed willful misconduct by denying the

parties their right to procedural due process. The judge conceded that that it was wrong to

conduct the trial the way he did but argued that this was merely legal error, not ethical

misconduct, and thus not a ground for discipline. Rejecting that argument, the Commission

stated that no legal question was presented to the parties or briefed but, rather, the judge

proceeded as he was want, apparently focused on his vision of efficiency with little regard for the

values that underlie the usual procedures for presenting evidence and cross-examining witnesses.

(2) In a second case, the father had charged the mother with contempt for not requiring

their three minor children to reside with him as ordered by the judge. The 15-year-old daughter

was a witness. After the daughter indicated that she would not live with her father, the judge

asked the girl why he should believe her testimony in light of her failure to abide by the court

order. The judge ignored the mother’s counsel’s objection, stated to the girl that he knew “this is

abusive for you,” and when the girl repeated that she would not live with her father, he recessed

the court and directed that the public defender to advise her.

The Commission found that the judge’s questioning of the 15-year-old witness was

prejudicial misconduct that brought the judicial office into disrepute. The Commission found

that the judge appeared to be bent on posing unanswerable questions to intimidate the 15-year-

old witness. The Commission also found that the questioning was inappropriate and the

contemporaneous evidence strongly indicated that the judge knew that it was. However, the

Commission concluded that, although the judge should have known better, he did not act in “bad

faith” because, as he himself stated, he had “never had this situation before.”

(3) The day after his questioning of the 15-year-old daughter, the judge found the mother

guilty of thirteen counts of contempt of court, sentenced her to 65 days in jail, and ordered her to

pay substantial fines. Her attorney, with the assistance of a second counsel, filed a writ of habeas

corpus with the court of appeal that raised four contentions of error, including an allegation that

the contempt proceedings were permeated by judicial misconduct. After receiving a copy of the

petition, the judge entered an order disqualifying himself. In the order, the judge stated: “After

reading the Petition for Writ of Habeas Corpus in the above captioned matter, I have determined

that I am now bias [sic] against [the mother’s attorney]. I cannot and do not trust [the mother’s

attorney]. He has overstepped the bounds of advocacy and has wrongly charged me with judicial

misconduct and personally attacked me.” Subsequently, another case in which the mother’s

attorney represented one of the parties was unexpectedly reassigned to the judge. The judge

disqualified himself, stating, “I cannot be – I’m afraid I cannot be fair in this case with [the

mother’s attorney] representing the party. And I do not want to be accused of taking anyone

unawares or of shirking my obligations to hear matters. Therefore, I’m stating my reasons why.

It is my opinion that [the mother’s attorney] is unethical and dishonest. And my feelings are so

strong that I cannot be fair in this matter, so long as he’s representing one of the parties.”

The Commission found that the judge went beyond any explanation necessary to

disqualify himself and evidently could not resist the temptation to publicly label the attorney

unethical and dishonest. Noting that the code of judicial ethics is not limited to proscribing what

26

a judge may legally do, the Commission stated that the question whether the way he chose to

perform his legal duty was appropriate or judicious was not addressed by the judge’s arguments

that he could not rely on his initial disqualification order, was required to give reasons for his

disqualification, and had chosen a traditionally permissible way of proceeding. The Commission

stated that it was not suggesting that a judge cannot give reasons for disqualifying; the

Commission did note that judges do not always give reasons and it was not clear that the parties

are entitled to know a judge’s reasons, although it may be the better practice for a judge to

disclose them. The judge had relied on a local rule requiring a statement of reasons for a

disqualification designed to give the presiding judge some assurance that a judge was not

shirking his duty to hear all assigned cases unless he or she is disqualified. However, the

Commission concluded that the judge could have easily satisfied that requirement without

branding the attorney unethical and dishonest and the judge’s explanation was far more

defamatory than necessary. The Commission also stated that every attorney that appears in court

is entitled to courteous conduct regardless of the judge’s opinion of his or her character.

However, the Commission concluded that the evidence that the judge acted with the intent to

punish the attorney was not clear and convincing and, therefore, that the judge’s conduct

constituted conduct prejudicial to the administration of justice that brings the judicial office into

disrepute.

In re Ford-Kaus, 730 So. 2d 269 (Florida 1999)

Affirming the recommendation of the Judicial Qualifications Commission, the Florida

Supreme Court removed a judge from office for mishandling an appeal before becoming a judge,

back-dating the certificate of service on a brief, making serious and substantial falsehoods in a

deposition she gave in the malpractice suit arising out of her mishandling of the appeal,

overcharging her client and misrepresenting to her client how much work she performed on the

appeal, depositing some of the cash payments from the client into her own operating account and

spending the money rather than depositing it into a trust account as a credit against future fees

and services, and failing to advise parties when an attorney who represented the judge in

pending, personal civil litigation appeared before her. The court found that the hearing panel’s

factual findings were supported by clear and convincing evidence. The court also concluded that

the judge’s actions were inconsistent with the responsibilities of a judicial officer and that she

was presently unfit to hold judicial office. The court stated that the judge’s conduct

demonstrated a pattern of deceit and deception that, particularly as it related to her own client,

casts serious doubt on her ability to be perceived as truthful by those who may appear before her

in her courtroom.

In June 1996, the judge had entered into a written contract to handle an appeal in a family

law matter on behalf of Ms. McBee concerning an order modifying the primary residential

custody of McBee’s minor child. The judge mishandled the appeal from the beginning. It was

initially filed in the wrong court, and the record was delayed by inaction by counsel. The judge

did not seek a stay of the order or ask that the case be expedited because it concerned custody of

a minor. Apparently because of the time constraints of running for judicial office, the case was

referred to another lawyer, Dwight Olsen, to write the brief. Olsen agreed to research and write

the brief for a flat fee of $1,000. The brief he furnished needed the judge to insert the references

to the trial transcript. He had the almost finished draft in the judge’s hands on October 31, 1996,

anticipating a filing by the due date of November 8, 1996. The brief was actually filed on

27

November 19, 1996, after being sent by Federal Express from the judge’s office on November

18, 1996. Although the brief was 10 days overdue, the court accepted it and did not grant the

motion to dismiss the appeal because of the late filing. The court did strike the brief and allow

an amended brief because the original brief lacked record references, which the judge should

have realized.

The brief contained a certificate of service signed by “Deborah Ford-Kaus” with a

confusing handwritten date showing “8th” to have been written over and “10th” or possibly

“18th” superimposed. The numeral “10” was the most prominent, and the hearing panel found it

was most likely that the “8th” was initially written and then changed to the “10th.” The brief

was accompanied by a letter dated November 10, 1996, that advised the clerk that the original

brief was being forwarded that date. The panel concluded that the certificate of service on the

brief constituted intentional back-dating and the back-dating and the letter were false and an

attempt to mislead the court and counsel.

The judge charged her client McBee more than $9,000 in fees and never advised her that

Olsen had done all of the work on the brief for a $1,000 fee, plus $28 in costs. McBee conferred

with the judge on January 3, 1997, which was the judge’s final meeting in her office before

assuming her judicial duties, to discuss the brief and the status of the appeal. McBee asked the

judge if she had written the brief and if it had been timely filed, although McBee had already

called the court clerk and knew the brief was late. The judge specifically told her that she had

written the brief and that the brief had been timely filed, stating that the clerk was in error. The

Commission hearing panel found that the judge had been knowingly untruthful to her client.

Linda Griffin, an attorney with whom the judge shared offices, also attended the meeting,

and the judge attempted to convince McBee that Griffin should take over the appeal. Griffin

disagreed and felt she was unqualified to handle the matter. After sitting in on the meeting,

Griffin concluded that the judge was not telling the truth and told the judge after the meeting to

apologize to McBee and to refund the fees to her. The judge very strongly refused “to give . . .

[her] a dime.” Later, the judge prepared a letter for Griffin to sign that would have refused

further representation of McBee by Griffin on the grounds that McBee had become adversarial

and confrontational with Griffin. Griffin refused to sign the letter and testified it was false. The

judge testified the letter was only a suggested draft and was merely “venting” of hostility on her

part. The panel found that the letter was absolutely untrue.

The election occurred on Tuesday, November 5, 1996, and the Ford-Kaus billing records

in her own handwriting showed work on the appeal of 8 hours on November 6, 8 hours on

November 7, and 8 hours on November 8. The judge told the investigatory panel this was a

billing error and blamed it on her secretary. When McBee asked about the bills for November 6,

7, and 8, the judge told her the dates were wrong. The hearing panel found that the judge did no

work whatsoever on these days, that the insertion on the bill of 8 hours per day for three days in

a row was a conscious act, and that the judge’s attempted explanations to both her client and the

Commission investigatory panel had been inconsistent and untruthful. The hearing panel also

found that the judge had been untruthful in explaining to the panel her position regarding these

bills. However, the hearing panel noted that the lack of truthfulness before it could not be

viewed as a new charge and stated that the result of the proceeding would be the same

notwithstanding the judge’s lack of truthfulness in the trial.

The judge charged Ms. McBee well over $9,000 in fees for her work on the appeal,

which actually consisted only of filing the unchanged Olsen brief. The judge admitted these

charges were “clearly excessive” and that McBee received no valuable services from her as a

28

result of this fee. The hearing panel found that there was both an overcharge and a substantial

misrepresentation to the client as to the actual services performed.

McBee paid in cash, and the judge admitted that she deposited some of the cash directly

into her own operating account and spent the money rather than depositing the payment into a

trust account as a credit against future fees and services. McBee asked the judge to return the

sums paid her, but she wrongfully refused to do so, in part because of her displeasure with the

attorney who replaced her in the appeal who had had a relationship with a political adversary.

McBee sued the judge, and the case was settled for $20,000.

The judge testified in her deposition, which received publicity, that she had lied to her

client, but chose to characterize her statements as a “white lie.” Finding that public confidence

in the integrity of the judiciary had been substantially lessened, the hearing panel stated that

while even “white lies” are unacceptable, these falsehoods were serious and substantial. The

panel rejected the assertion that the stress of an election and the closing of a practice justify or

mitigate the violations.

After she took office, two lawyers represented the judge in pending, personal civil

litigation. The judge did not advise the parties or counsel of her relationship with one of the

attorneys when the attorney appeared before her in contested matters.

The court did note its disapproval of certain conduct of the Commission’s special

counsel. After the conclusion of the hearing before the panel, the special counsel had filed a

motion in an attempt to submit an additional affidavit to the panel that concerned separate

charges that were unrelated to the charges in this case. The panel denied the motion, but the

special counsel provided the affidavit to the court and discussed the allegations from the affidavit

in the answer brief. The court noted it did not consider the affidavit in making its decision.

Commission on Judicial Performance v. Justice Court Judge R.R., 732 So. 2d 224 (Mississippi

1999)

The Mississippi Supreme Court privately reprimanded a judge for inappropriately

remarking to a deputy clerk that he noticed that she checked out men. The Commission on

Judicial Performance had recommended a public reprimand for that comment and also for

touching the deputy clerk on her shoulders, telling her about a sexual dream, and having a

conversation in the court office about a pornographic video store. However, the court found that

the charges other than the one inappropriate comment were not proven by clear and convincing

evidence and that one comment did not rise to the level that warrants a public reprimand but

privately reprimanded the judge and taxed him with costs.

The judge testified that he touched C.C., a deputy clerk, on the shoulder to get her

attention at least once and may have more often, and he probably touched other people in the

office the same way for the same reason. He was unsure of the date he touched C.C. and denied

that either C.C. or deputy clerk B.B. ever told him C.C. did not like to be touched. B.B.,

however, testified that, when she saw the judge touch C.C. on the shoulder to get her attention,

she told him in a light manner that C.C. did not like to be touched. Later she saw the judge touch

C.C. on the shoulder again and said, “Judge R.R., am I going to have to hit you with a brick?

C.C. don’t like to be touched.” After this exchange, B.B. said she never saw the judge touch

C.C. again. She added that she had never seen the judge touch anyone else in the office and that

she herself had never been touched by him.

29

According to C.C., the judge once started talking to her about a dream, saying “You

wouldn’t believe who I dreamed about . . . . You wouldn’t believe some of the things she did to

me.” This and similar comments led C.C. to believe the dream was sexual in nature, and she did

not respond. The judge denied he had discussed a dream with C.C.. He admitted, however, he

did “mention in the presence of everyone [in the office] I had a weird dream.”

Another female employee, a constable, B.B., the judge, and C.C. had a conversation in

the office about a video store in a nearby town that carried X-rated movies. C.C. testified that

the judge said he and his wife had been to the store and had watched X-rated movies. She

admitted that she took part in the conversation, though she was uncomfortable. C.C. also stated

that general conversations among office staff, lawyers, police officers, and judges were common

in the office and sometimes those conversations were off color or might have some sexual

content, but “not to this extent.” The judge said there was sexually related banter in the office,

but that he did not pay attention to it or act to stop it, that he may have been asked a question and

answered a question, but he always behaved professionally.

C.C. stated that once while she and the judge were alone, the judge commented that he

noticed how she “checked out” all the men that came into the office and asked her “You check

me out too, don’t you?” C.C. stated this made her uncomfortable. The judge denied asking C.C.

about her “checking out” people in the office. Judge M.M. testified she was not present at the

time of the alleged incident, but C.C. told her about it a day or so later. She also testified she had

two conversations with the judge about the incident. In the first conversation, the judge said, “I

said something to Miss C.C. the other day I shouldn’t have said, but it won’t happen again.” The

second conversation took place a long time afterward and concerned C.C.’s complaint finally

getting settled. Judge M.M. did not elaborate on the content of C.C.’s statements to her, only

referring to “what Ms. C.C. told me he said.”

The court found that no clear and convincing evidence that the judge touched the deputy

clerk on her shoulders inappropriately, told her about a sexual dream, and had conversations in

the justice court office about a pornographic video store in a nearby town. Although noting that

the judge admitted he touched C.C.’s shoulders, the court concluded that it was clear from the

judge’s testimony and B.B.’s testimony that the judge did so only to get C.C.’s attention and that

after B.B. twice told the judge C.C. did not like to be touched, B.B. never saw him touch her

again. The court also found that the judge participated from time to time in conversations in the

clerk’s office with office staff, police officers, constables, and others about sexual or off color

topics and that C.C. confirmed she also participated in sexually related conversations. The court

concluded that, although the judge’s participation in conversations of this type among people in

the office may have been inappropriate, it did not rise to the level of willful misconduct in office

and conduct that brings the judicial office into disrepute. The court noted that at the hearing C.C.

testified that “the overall feel of the way he had been directing statements” to her led her to think

the dream about which the judge spoke was sexual was in direct contradiction to the charge made

in the complaint that he told her it was a sexual dream.

However, the court did conclude that there was clear and convincing evidence that the

judge said to C.C. that he noticed how she “checked out” all the men that came into the office

and “You check me out too, don’t you?” noting Judge M.M.’s testimony that C.C. had told her

about the incident and that the judge had told her that he said something that he should not have

said. The court concluded that the statement constituted willful misconduct in office and

conduct prejudicial to the administration of justice.

30

In the Matter of D’Ambrosio, 723 A.2d 943 (New Jersey 1999)

Pursuant to the presentment filed by the Advisory Committee on Judicial Conduct, the New

Jersey Supreme Court publicly reprimanded a retired judge for driving while intoxicated. The

judge had been convicted of the offense.

In re Judicial Campaign Complaint against Burick, 705 N.E.2d 422 (Commission of Five Judges

Appointed by Ohio Supreme Court 1999)

Reviewing a hearing panel’s findings of fact and conclusions of law, a commission of

five judges appointed by the Ohio Supreme Court publicly reprimanded a judicial candidate and

fined her $7,500 for (1) falsely alleging in campaign advertisements that her opponent was

appointed by “political bosses,” (2) making statements regarding her intended use of the death

penalty, (3) making statements that conveyed false and misleading information about the

sentence her opponent had imposed in a pending criminal case, and (4) making statements that

she had received “the Union endorsements” and “had been endorsed by the Fraternal Order of

Police” that, while technically true, were misleading and deceiving. The commission also

ordered the candidate to pay the complainant $5,000 in attorney fees and expenses.

(1) The candidate had stated that “Less than one year ago, the political bosses appointed a

new judge to our courts,” referring to her opponent, the incumbent judge. Finding that that

statement was false and misleading, the commission noted that the incumbent had been

appointed by the governor pursuant to the constitutional provisions for filling vacancies in

judicial office. Stating that attorneys, especially those seeking election to judicial office, have an

obligation to further, not obscure, the public’s understanding of the law and legal system, the

commission concluded that, while judicial candidates may point out that they or their opponents

have benefited from the constitutional appointment process and acknowledge the role that

politics plays in that process, such statements should be accurate so as to enhance the public’s

understanding of the process.

(2) The candidate had stated in advertisements, referring to herself, that “Elizabeth

Burick will be a tough Judge that supports the death penalty and isn’t afraid to use it,” and

“Burick favors the death penalty for convicted murderers.” The commission stated that, at the

very least, the candidate’s statements imply to a reasonable person that she would use the death

penalty in a capital case regardless of the mitigation evidence and notwithstanding the statutory

standards a judge or jury must consider in determining the appropriateness of the death penalty.

(3) The candidate had authorized her campaign committee or others working on her

behalf to state that the incumbent had sentenced to “only five years” a defendant who had

“repeatedly raped” a minor victim. The statement was made after the sentence had been imposed

but before the defendant’s time to appeal had expired. The commission found that the defendant

had not been convicted of multiple rapes, but instead pleaded guilty to a single charge of sexual

battery for which he was sentenced to the maximum term of incarceration allowed by law.

(4) The candidate had distributed a letter indicating that she was “proud to have received

the Union endorsements” and had broadcast and distributed information stating that she had been

“endorsed by the Fraternal Order of Police.” The commission stated that a judicial candidate

may convey information regarding endorsements in a truthful and accurate manner. The

commission concluded that the candidate’s statement that she received “the Union

endorsements” would lead a reasonable person to conclude that the candidate had received all of

31

the union endorsements in the race but, in fact, both candidates had received labor union

endorsements. The commission also found that the candidate’s use of the phrase “endorsed by

the Fraternal Order of Police,” while to some degree true, was, at the same time, misleading and

deceiving because she had received the endorsement of only one lodge and her failure to identify

more specifically the nature of the endorsement, for example, by including the name of the lodge

that issued the endorsement, made the statement misleading. The commission noted that the

candidate had permission from officers of the Fraternal Order of Police to use the endorsement

as she had but held that a judicial candidate is not relieved from compliance with Canon 7 simply

because a third party authorizes a particular type of campaign conduct or communication.

The commission found that the candidate’s statements lessened the public’s

understanding of the judicial system, damaged the reputation of her opponent as a jurist, and

were contrary to the overarching principle of Canon 7 that judicial candidates should conduct

their campaigns in a dignified and appropriate manner. The commission also noted that the

candidate had committed six separate violations involving ten different provisions of Canon 7,

and that the candidate failed to take immediate and effective steps to withdraw her campaign

advertisements and literature once the hearing on the complaint was concluded.

The commission did dismiss several charges against the candidate. In a campaign letter,

the candidate had inserted the name “Elizabeth A. Burick” between the words “Common Pleas”

and “Judge.” The commission agreed with the hearing panel that this was inadvertent. In the

same letter, the candidate had stated “My goal is to be your Judge.” The commission agreed

with the hearing panel’s finding that the statement did not try to indicate in any way that the

candidate was claiming to currently be a judge. In the same letter, the candidate had stated that

“in my court there will be immediate punishment,” which the candidate explained meant as soon

as punishment could be made and within the law. The commission agreed with the hearing

panel’s conclusion that, while the wording may not have been the best, the statement was not a

violation of Canon 7. Finally, in that letter, the candidate had stated “I will be creative with the

use of community service and other programs, so that there is no longer a mockery of the

courts.” The commission agreed with the hearing panel’s finding that, while perhaps not the best

choice of words, there was no implication that the candidate called the court a mockery.

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In re Judicial Campaign Complaint against Hein, 705 N.E.2d 687 (Commission of Five Judges

Appointed by Ohio Supreme Court 1999)

Affirming and adopting the findings of fact and conclusions of law made by a hearing

panel, a commission of five judges appointed by the Ohio Supreme Court publicly reprimanded a

judicial candidate and fined him $2,500 for (1) criticizing a sentence imposed by his opponent in

a pending case and (2) stating in campaign communications and in a candidate’s forum that his

opponent was a “liberal” and “soft on criminals.” The Commission also ordered the candidate to

pay the complainant $3,869.57 in attorney fees and expenses.

A provision in Canon 7 of the Ohio code of judicial conduct precludes a judicial

candidate from “comment[ing] on any substantive matter relating to a specific pending case on

the docket of a judge.” The commission found that the candidate’s comments in a press release

about the sentence imposed by the incumbent clearly related to a substantive matter in a specific

case that was pending before the court of appeals. Rejecting the candidate’s defense that his

comments were made in his capacity as prosecuting attorney and not as a judicial candidate, the

commission concluded that, at the time the candidate issued the press release, he was a “judicial

candidate” as defined in the code and therefore was obligated to comply with the requirements of

Canon 7. The commission stated that, as written, the rules governing judicial campaign conduct

do not contain an exception for candidates who happen to hold another public office, and it was

beyond its authority as a reviewing commission to infer such an exception.

A provision in the Ohio code of judicial conduct prohibited a candidate from making

communications “concerning a judicial candidate or an opponent, either knowing the information

to be false or with a reckless disregard of whether or not it was false or, if true, that would be

deceiving or misleading to a reasonable person.” Therefore, the commission concluded that,

even if the candidate’s statements that the incumbent was liberal and soft on crime were true, the

record supported a finding, by clear and convincing evidence, that the candidate acted with

reckless disregard by distributing information that was deceiving or misleading to a reasonable

person. The commission found that the use of general, inflammatory terms or “buzzwords” is

inappropriate in judicial campaigns and does not allow for a fair and accurate portrayal of the

record of the candidate’s opponent. The commission stated that it did not mean to imply that a

judicial candidate could not comment on the record of his or her opponent or can only mimic

words and phrases used by his or her opponent but that comments regarding an opponent’s

record must be truthful and specific and generalizations must be avoided because they are more

prone to be misleading or deceiving than specific comments and observations.

Noting the candidate’s lack of familiarity with Canon 7 and somewhat cavalier attitude

taken toward obtaining a greater understanding, the commission found that judicial candidates

have an obligation, beyond simply attending the required two-hour judicial candidate seminar, to

familiarize themselves with Canon 7 and conduct their campaigns accordingly.

In re Campaign Complaint Against Runyan, 707 N.E.2d 580 (Commission of Five Judges

Commission Appointed by Ohio Supreme Court 1999)

Reversing the findings of a hearing panel, a five-judge commission appointed by the

Ohio Supreme Court dismissed a complaint that a judicial candidate had made a promise or

pledge by stating, “If elected, I will imprison all convicted felons,” during an interview with a

newspaper. The complainant (the opposing candidate), the candidate, a reporter, and an editor

were present at the interview. The reporter’s article about the interview quoted the judge as

33

stating: “I would run a court that views convicted felons from the standpoint that they are going

to be incarcerated. The penalty is the best and first way of dealing with felons.” In an editorial,

the editor stated, “Runyan vows to uphold Henderson’s tradition, saying he would put all

convicted felons in prison. Murray said each individual case must be considered.”

The majority stated that the statement that a candidate would put all convicted felons in

prison was an affirmative declaration that could be a pledge or promise. However, the majority

of the commission concluded that there was not clear and convincing evidence that the candidate

had said, “If elected, I will imprison all felons.” The majority noted that it must consider the

words of the candidate, not the editor’s interpretation of those words or conjecture as to their

meaning. The majority concluded that the candidate’s statement “I would run a court that views

convicted felons from the standpoint that they are going to be incarcerated. The penalty is the

best and first way of dealing with felons” was a philosophical viewpoint that was unlikely to rise

to a pledge or promise as reasonable persons would define them.

The majority also noted that the substance of the two statements differed. The statement

in the article spoke of incarceration, which includes jail and community-based correction

facilities as well as prisons; the editorial used the words “prison” and “imprison.” The majority

concluded that by changing the word “incarceration” to “prison” and by adding the words “all”

and “vows,” the editor transformed the statement into what would reasonably be considered a

pledge or promise.

Two judges dissented. Noting that the candidate admitted that the newspaper articles

were accurate regarding his statements, “I would run a court that views convicted felons from the

standpoint that they are going to be incarcerated,” the dissent stated it found the statement

implies that the candidate had prejudged an issue without hearing the specific individual facts or

applicable law. The dissent concluded that campaign statements that “convicted felons are going

to be incarcerated” are prejudicial, appeal to special interests, and unfairly treat felons as a class

of persons without respect to their individual differences.

In the Matter of Brown, 512 S.E.2d 114 (South Carolina 1999)

Accepting an agreement between a former judge and the Commission on Judicial

Conduct, the South Carolina Supreme Court publicly reprimanded a former judge who had

retained compensation for marriages he performed. On December 18, 1996, the court had

privately reprimanded the judge and ordered him not to personally retain any compensation for

performing marriages and to remit to the county treasurer any monies received prior to the order

or obtained in the future. However, from December 18, 1996, through December 7, 1997, the

judge performed 901 marriages for which he charged and retained the compensation without

remitting to the county treasurer any of the monies obtained before or after December 18, 1996.

Subsequently, after a hearing, the court held the judge in both civil and criminal contempt, and

the judge resigned. The court noted that it had decided to accept the agreement for a public

reprimand because the judge had resigned and had agreed not to seek or accept any judicial

position within the state unless first authorized to do so by the court.

Public Warning of Smith (Texas State Commission on Judicial Conduct May 29, 1998)

The Texas State Commission on Judicial Conduct publicly warned a judge for failing to

disclose that the plaintiff in a case was his clerk and presiding in the case; ignoring the legal

34

authorities that showed that the case had been brought against the wrong defendant and

proceeding with the case against the wrong defendant; notifying the State Department of

Insurance of his judgement against the defendant insurance company and allowing the

Department to pursue his letter as a complaint by a judge against the company; and failing to

keep adequate records of court activity and make them available to the public.

The judge’s clerk and her husband had filed a suit against an insurance adjuster for

failure to cover repairs of a motor vehicle regarding an accident claim. The judge tried the case

without disclosing that the plaintiff was his clerk of many years. The judge ruled for the

plaintiff. The defendant had filed an answer that raised in detail her claim that she was the

wrong person to be sued. The judge admitted to the Commission that he did not consider or

research the legal authority cited in the answer. The Commission found that, when coupled with

the fact that the plaintiff was the sole member of the court staff, these errors created the strong

appearance of bias and favoritism.

The judge wrote a letter to the insurance company that provided coverage for the

plaintiffs that stated that the defendant’s answer “did not reveal any relevancy as presented.”

The judge also mailed a copy of the letter to the State Department of Insurance. The department

handled the letter as a complaint against the insurance company filed by the judge. The judge

was notified that his “complaint” was being investigated and allowed his letter to be treated as a

complaint. The Commission found that the letter served no valid interest of the court or the

administration of justice and the judge used the prestige of his office to benefit his clerk in her

dispute over insurance coverage.

The judge was unable to provide any written judgement or docket entry reflecting the

court’s decision or to produce the court file for the case. The documents the judge did produce

did not bear any date-received stamp or mark to indicate when they were received by the court.

Public Warning of McElroy (Texas State Commission on Judicial Conduct May 4, 1998)

The Texas State Commission on Judicial Conduct publicly warned a judge for

participating with law enforcement officers in a criminal investigation and improperly using his

office to render a legal opinion when no case had been brought before him. A sheriff’s detective

approached the judge at his office seeking a search warrant for a video store, regarding allegedly

obscene materials. The judge did not sign the warrant or refuse the request, but talked with the

business owner. The owner offered to shut down the store if the judge determined that the

materials were “obscene.” Subsequently, with no case filed in his court, the judge, with law

enforcement officers and the owner, went to the store, where they made a personal inspection.

The judge expressed his opinion to the owner, and the owner closed the store. Finding that the

judge’s actions constituted a departure from the proper role of a judicial officer, the Commission

stated that the judge’s active participation with law enforcement officers in an ongoing

investigation of alleged criminal conduct lent the prestige of his office to the criminal

investigation and violated the doctrine of separation of powers. The Commission also found that

the judge’s improper use of his office to render an opinion when no case had been brought before

him cast reasonable doubt on his capacity to act impartially as a judge and called into question

his independence as a judge. Finally, the Commission concluded that the judge’s active

participation and his unofficial opinion effectively coerced an individual to close down his

business without due process.

35

Public Warning of Markham (Texas State Commission on Judicial Conduct May 4, 1998)

The Texas State Commission on Judicial Conduct publicly warned a judge who had

urged an employer to rehire the judge’s friend. The judge met with officers of a lending

institution that had recently terminated the employment of a friend of the judge and during the

meeting, urged the rehiring of his friend and stated: “I’m not going to lose my job over this. I

will still be judge over there [pointing to the courthouse] and you will still be in business over

here. I’m telling you, if you do the right thing, I’ll remember it.”

In re Young, 976 P.2d 581 (Utah 1999)

On a petition for rehearing, the Utah Supreme Court vacated its original opinion and held

that having two members of the state senate, appointed by the president, and two members of the

state house, appointed by the speaker, on the ten-member Judicial Conduct Commission was not

a violation of the state constitution’s separation of powers clause. Noting that the Commission

operated after the original opinion for a short period without its four legislator members, the

court held that its actions during that period were lawful and valid because there was a quorum

present. The court also requested the parties to reargue the question of the appropriateness of the

recommended sanctions for Judge Young, which was the matter that brought the issue before it.

The court stated that the petition for rehearing and the briefs of the various amici had

presented much important new material about the origins of the challenged judicial article of the

Utah Constitution that had elevated the Commission to constitutional status. The court also

noted that some of the briefs on rehearing raised a concern that the original opinion’s language

about separation of powers was sufficiently broad to bring into question the constitutionality of

many boards, task forces, working groups, advisory committees, and commissions on which

members of more than one of the three branches of government sit together.

The separation of powers provision of the Utah Constitution, which is in article V,

section 1, provides:

[i] The powers of the government of the State of Utah shall be divided into three distinct

departments, the Legislative, the Executive, and the Judicial; and [ii] no person charged

with the exercise of powers properly belonging to one of these departments, shall

exercise any functions appertaining to either of the others, except in the cases herein

expressly directed or permitted.

The court stated that the analytical model derived from the second clause was a three-step

inquiry. First, are the legislator members of the Commission “charged with the exercise of

powers properly belonging to” one of the three branches of government? Second, is the function

that the statute has given the legislators one “appertaining to” another branch of government?

The final step asks: if the answer to both of the above questions is “yes,” does the constitution

“expressly” direct or permit exercise of the otherwise forbidden function? The court stated that

there was no question that the answer to the first question was “yes” and the answer to the third

question was “no.” The court noted that, in its original opinion, it reached its conclusion that the

function performed by the Judicial Conduct Commission was one “appertaining to” the judicial

branch of government with relatively little analysis.

The court stated that the history of the judicial article was a fascinating study of the

conflict between the executive and legislative branches that began when the legislative branch

insisted on input in the selection and confirmation process for judges and the executive resisted

and precipitated a complete rewrite of the judicial article of the Utah Constitution in 1984. The

36

court noted that the rewritten judicial article restructured the selection and discipline provisions

of the constitution and for the first time constitutionalized both the pre-existing judicial

nominating commission process and the Judicial Conduct Commission.

When established by statute in 1971, the Commission was composed of five members,

three from the board of commissioners of the Utah State Bar and two legislators, one each

appointed by the president and the speaker. The statute was subsequently amended several

times. In 1975, the number of legislators was increased to three and the total membership to six.

In 1977, the membership was increased to seven, with four to be legislators. In 1983, the

membership was increased to nine with the two new members being appointees of the Governor.

Thus, the court concluded, by the time the new judicial article was drafted, there was a

thirteen-year history of a judicial conduct commission that was not the province of any one

branch of government.

The court also noted that the constitutional Commission was a virtual copy of the

statutory Commission except that the constitutional provision was briefer, leaving the details of

procedure and composition to be fixed by the statute, which the court stated was appropriate in

good constitution drafting. The court concluded that, despite the minor differences, it seemed

plain that the constitutional revision commission intended the commission to remain an entity

exercising powers available to be shared by other branches of government. Noting statements

about the composition of the Commission made by the sponsor of the amendments on the house

floor, the court also concluded that the legislature had assumed the commission would exercise a

function that was permissible to members of branches other than the judicial branch. Finally, the

court noted that, in the 1984 voter information pamphlet, the voters were told that legislators and

others would sit on the Commission. The court concluded that the function performed by the

Commission was not the exclusive province of the judiciary and, therefore, the function

exercised by the legislators sitting on the Commission was not “appertaining to” the judicial

branch.

To allay fears expressed by the amici about the effect of the original opinion on other

boards, the court also stated that a proper understanding of the analytical model used in its

separation of powers cases indicated that unless a board, commission, or other body upon which

a member of one branch sits purports to exercise a function “appertaining to” another branch,

there need be no concern about that service running afoul of the separation of powers clause.

In a dissent, one justice noted that after the original decision was handed down, various

legislators threatened to initiate retaliatory action against the judiciary by asserting even greater

legislative control over discipline and retention of judges. The dissent stated that the information

about the history of the constitutional article creating the Commission could not legitimately

override the plain, clear language of the separation of powers clause. The dissent also stated that

the majority’s holding that the powers exercised by the Commission are not “judicial” was not

only contrary to long-established authority but seriously subverted the separation of powers

clause and the independence of judges because the exercise of Commission disciplinary authority

may be used against a judge whose views differ from those held by legislative members of the

Commission and may also create the appearance of undue political influence. The dissent

concluded that this potential alone may diminish independence of the judiciary in the eyes of a

public that is expected to respect judicial opinions with which it may seriously disagree and that

judicial integrity could be compromised if the public increasingly believed that judicial rulings

are influenced by political forces.

37

In re Dimick, Order (Utah Supreme Court January 22, 1999)

The Utah Supreme Court accepted a stipulation consenting to the implementation of the

findings of fact, conclusions of law, and order of the Judicial Conduct Commission that censured

a judge for driving a vehicle for several months knowing that the registration had expired. The

Commission findings noted that newspaper articles had publicized the judge’s conduct.

In re Chavez, Order (Utah Supreme Court January 13, 1999)

The Utah Supreme Court accepted a stipulation consenting to the implementation of the

findings of fact, conclusions of law, and order of the Judicial Conduct Commission that censured

a former judge for appropriating to her own use $1,200 cash bail and failing to forward abstracts

of reportable traffic violations to the drivers’ license division within ten days of the conviction or

plea held in abeyance. The judge had pled guilty to misusing public moneys and resigned.

In the Matter of Turco, 970 P.2d 731 (Washington 1999)

The Washington Supreme Court censured a former judge and suspended him from office

until the end of his term for intentionally striking or pushing his wife, causing her to fall. The

court also ordered that the judge complete a domestic violence program before he could serve in

any future judicial capacity. The judge had not stood for re-election in 1998. The Commission

on Judicial Conduct had recommended that the judge be removed.

On December 8, 1995, the judge and his wife had attended a madrigal feast at a church.

The judge exited the car and entered the church vestibule without waiting for his wife, who had

to remove from the car trunk a wreath and some baskets she was bringing to the event. When

she finally entered the vestibule of the church and placed the wreath and baskets on the floor, she

approached the judge, who was waiting for her, and noticed he appeared to be very angry. The

judge’s wife testified that the judge said to her, “I’ve got these God damn tickets, why the hell

did you keep me waiting.” She says she responded, “Had you helped me with the items from the

trunk, it would have taken less time.” Then the judge’s wife testified, “He said to me, ‘Nobody

talks to me like that and gets away with it,’ and he was right -- I could hear him and he struck me

and I fell to the floor.” She described being struck and falling to her knees. The judge claimed

he did not push his wife. He said her fall was an accident, although he admits that his arm had

contact with her and that he did not help her to her feet or apologize to her.

There were two witnesses to the incident. One, a close friend of the judge’s wife testified

unequivocally that the fall was not accidental, although her testimony was somewhat at odds

with the judge’s wife’s, in that the witness said the judge and his wife were facing each other

when the contact occurred while the judge’s wife said he was behind her when he shoved her, as

did the other witness to the incident. The same witness testified that the judge admitted to her

later at an Elks Club banquet that he intentionally pushed his wife. The other witness testified

that the judge appeared angry, exchanged words with his wife, and “then it appeared that he gave

her a shove and walked out the door.” Within a few days of the incident, the judge’s wife

reported the events to the police, who investigated the complaint. Eventually, the judge’s wife

asked the police to stop the investigation. She left the judge in December 1996; the judge

subsequently filed for dissolution. They had been married for 38 years.

The court rejected the judge’s argument that he had been prejudiced by the Commission

delay in filing charges. The incident occurred on December 8, 1995; the Commission filed its

38

charges on August 27, 1997. The judge argued that the his wife’s description of the incident

became more egregious with the passage of time, and her memory of the events was colored

negatively by the separation and pending divorce in the interim between the incident and the

hearing. Also, the judge claimed one of the witness’s memory faded, reducing his testimony to

only his impression of the incident, rather than the actual events. The court stated that the judge

could not know that the testimony would have been more favorable to him had the hearing

occurred closer in time to the incident, noting that the passage of time and fading of memories

may have actually been in the judge’s favor.

Stating that the judge’s arguments emphasized minor technical differences in the

witnesses’ descriptions of the incident, the court found that a fair reading of the transcript left the

impression all three witnesses were quite certain the judge intentionally shoved his wife, even

though there were differences in their recollections of precisely how it occurred. The court noted

that the greatest single reason not to believe the judge’s defense was his own testimony that he

neither helped his wife to her feet nor apologized to her, stating that a natural reaction to

knocking even a complete stranger down to her knees accidentally would be to help her up and

offer some apology.

The judge asserted his conduct did not compromise public confidence because he had not

been charged with or convicted of any crime stemming from the incident. The court stated not

all reprehensible extra-judicial conduct reflects adversely on the judiciary or a particular judge’s

ability to decide cases fairly in a way that implicates its supervisory powers, noting that all

judges in Washington are either elected or appointed by elected officials and, therefore, subject

to popular opprobrium and election redress for conduct the public considers inappropriate,

reprehensible, or unseemly for those who would be a judge among them. The court rejected the

judge’s argument that so long as a judge’s private conduct was at worst merely tortious, the

judge should not be subject to discipline. The court concluded that its authority and that of the

Commission to discipline judges was confined to situations for which there is an articulable

nexus between the extra-judicial conduct and the judge’s duties. The court also held that the

judge’s misconduct did bear an articulable nexus to his duties as a judge, noting the large volume

of domestic violence cases in the court on which the judge sat. The court stated that the judge’s

act of pushing his wife to the ground raised substantial questions about his ability to sit in

judgment of those accused of domestic violence, noting that fearful victims would certainly be

justified in questioning whether a judge who has demonstrated so little control of his own

emotions and so little restraint as to allow himself to assault his own wife could rule impartially

and wisely in the emotion-charged arena of domestic violence.

The court agreed with the judge that removal would be an excessive sanction. However,

the court also stated that a sanction limited to public disapproval of the judge’s boorish behavior

was plainly insufficient, noting the Commission’s conclusion that “the judge is not subject to

discipline for an isolated incident of violence against his wife, but in the context of his earlier

admonishment for admitted comments on the bench reflecting a lack of concern for domestic

violence and its victims.” Only one week before the incident, the judge had stipulated to a

written admonishment for three statements. The judge had admitted to saying to a defendant

whom he had just found guilty of assault in the fourth degree, “[Y]ou didn’t need to bite her.

Maybe you needed to boot her in the rear end, but you didn’t need to bite her.” In another

incident, the judge had said to the defendant, “[F]ifty years ago I suppose they would have given

you an award rather than . . . what we’re doing now.” In yet another incident in open court, after

the judge dismissed the defendant when the victim failed to appear, he said to a city attorney,

39

“[M]y opinion is . . . that the police do 95% of the work when they separate the parties, so that

takes care of 95% of the problem. You know, all we’re doing is slapping someone after the

police have remedied the situation. But, so be it. So I mean there’s nothing to get excited about

dismissing these cases.”

The court noted that the judge had submitted to the court the affidavits of the judge’s four

children that cast considerable doubt on the judge’s wife’s veracity by averments to the effect

she was trying to ruin him. The judge had obtained the affidavits one to two months after the

hearing but did not explain why he did not call his children to testify at the hearing. Therefore,

although it admitted the affidavits into the record, the court found they deserved little weight,

especially as compared to the two witnesses who largely corroborated the judge’s wife’s account

of the incident and whom the judge cross examined extensively at the hearing.

One justice dissented. The dissent argued that there was no constitutional basis for the

deference the majority gave to the credibility determinations of the Commission and that the

significant delay had to be factored in when weighing the strength of the testimonial evidence,

noting that the burden is always on the accuser and that stale proof is presumptively the enemy

of truth. The dissent stated that the record before the court, which included evidence not before

the Commission, demonstrated that the judge’s fears that time eroded the truth and inflamed the

testimony of his wife and her friend to his disfavor were certainly not without foundation. The

dissent relied on the affidavits filed by the judge’s children swearing that they had never seen

any abusive behavior by the judge in their decades at home and that their mother intended to ruin

the judge by allegations of abuse. The dissent concluded that it had not been established by

clear, cogent, and convincing evidence that the judge intended any harm to his wife.

The dissent also argued that a single, isolated act of tortious behavior (whether intentional or

negligent), having nothing to do with any judicial function could not be equated with lack of

judicial impartiality. The dissent argued that there was no more inference arising from these

facts that the judge would be unfair to the prosecution of domestic abuse cases than that he

would be unfair to the defense if he himself had been the innocent victim of domestic abuse and

that the logic of the majority’s inference was contrary to the fundamental assumption that a judge

will apply the law notwithstanding his possible personal preferences to the contrary. The dissent

concluded that both the Commission and the majority were in reality disciplining the judge

because of a subjective predisposition to make a public statement about a social ill and that the

purpose of the code was not to ensure conformity in thought or deed by its members in non-

judicial matters, nor make examples for public reference. The dissent also stated that the court

must understand the important role of the electorate that selected its judge and not transgress

upon its prerogative to judge the candidate by less objective political standards.