Judicial Misconduct in California

What Constitutes Judicial Misconduct?

Purpose and Scope of Judicial Code

Canon 1 of the Code of Judicial Ethics provides:

“A judge shall uphold the integrity and independence of the judiciary.... An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.”

(Cal. Code Jud. Ethics, canon 1; see also People v. Zackery (2006) 146 Cal.App.4th 122, 132.)

Canon 2.A. of the California Code of Judicial Ethics declares that

“A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Judicial Error and Misconduct

An act that is legally erroneous nevertheless can constitute misconduct if it involves "bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law or any purpose other than the faithful discharge of judicial duty." (See In re Whitney (1996) 14 Cal. 4th 1, 2-3 [failure to follow the law regarding arraignment procedures]; McCullough v. Commission on Judicial Performance (1989) 49 Cal. 3d 186, 192 [willful misconduct to direct guilty verdict in criminal action and thereby deprive the defendant of fundamental right to jury trial]; Gonzalez v. Commission on Judicial Performance (1983) 33 Cal. 3d 359, 374-375 [willful misconduct to visit jury room during deliberations]; Gubler v. Commission on Judicial Performance, supra, 37 Cal. 3d 27, 47-48, 55-59 [improper collection practices involving attorney fees, improper gun sale]; Kloepfer v. Commission on Judicial Performance (1989) 49 Cal. 3d 826, 838-863 [willful and prejudicial misconduct for failing to protect the rights of defendants, and abuses of power involving contempt procedure, orders to show cause, and bench warrants]; Cannon v. Commission on Judicial Qualifications, supra, 14 Cal. 3d 678, 693-694, 122 Cal. Rptr. 778, 537 P.2d 898 [failure to follow the law regarding contempt procedures].)

Grounds for Investigation

A judge who commits legal error which, in addition, clearly and convincingly reflects bad faith (Broadman v. Commission on Judicial Performance, supra, 18 Cal. 4th 1079, 1091-1092), bias (Kennick v. Commission on Judicial Performance (1990) 50 Cal. 3d 297, 327-331), abuse of authority (Spruance v. Commission on Judicial Qualifications (1975) 13 Cal. 3d 778, 786-795), disregard for fundamental rights (Kloepfer v. Commission on Judicial Performance, supra, 49 Cal. 3d 826, 849-854), intentional disregard of the law (Cannon v. Commission on Judicial Qualifications, supra, 14 Cal. 3d 678, 695-698), any purpose other than the faithful discharge of judicial duty(Ryan v. Commission on Judicial Performance (1988) 45 Cal. 3d 518, 545-546), is subject to investigation. (See generally, Shaman et al., Judicial Conduct and Ethics, supra, § 2.02,at 32-37.) Mere legal error, without more, however, is insufficient to support a finding that a judge has violated the Code of Judicial Ethics and thus should be disciplined.

Judicial Commission's Role

A judge may be disciplined for:

willful misconduct in office,
persistent failure or inability to perform judicial duties,
habitual intemperance in the use of intoxicants or drugs, or
conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

(Cal. Const., art. VI, § 18, subd. (d) [former subd. (c)].)

The discipline can be private or public admonishment, censure, or removal from office. (Id.)

“When disciplining a member of the judiciary, we undertake an independent evaluation of the record in order to determine whether clear and convincing evidence supports the Commission's recommendation.” (Ryan v. Commission on Judicial Performance (1988) 45 Cal. 3d 518, 530.) “In so doing, we give special weight both to the factual findings of the special masters, because of the masters' ability to evaluate the credibility of the witnesses at the hearing, and to the conclusions of the Commission, because of its expertise in matters of judicial conduct.” (Id.)

“We may censure or remove a judge for engaging in ‘willful misconduct in office, persistent failure or inability to perform the judge's duties, habitual intemperance in the use of intoxicants or drugs, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.’” (Cal. Const., art. VI, § 18(c).)

Willful misconduct, the most serious charge, occurs when a judge commits acts

which he knows, or should know, are beyond his authority
for reasons other than the faithful discharge of his duties.

(Furey v. Commission on Judicial Performance (1987) 43 Cal. 3d 1297, 1305.)

Though a judge must act in bad faith (Id., at 1304) in order to commit willful misconduct, he need not necessarily seek to harm a particular litigant or attorney; disregard for the legal system in general will suffice. (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal. 3d 270, 286.) Unlike willful misconduct, the charge of prejudicial conduct does not require the presence of bad faith. (Furey, supra, 43 Cal.3d at 1304.) It occurs when a judge, though acting in good faith, engages in conduct which adversely affects public opinion of the judiciary. (Geiler, supra, 10 Cal.3d at 284.) Though ‘less grave’ than willful misconduct (Id., at 283), prejudicial conduct may nevertheless, by itself, justify removal. (Id., at 284, fn. 11.)

Persistent failure, also an independent ground for removal, focuses on a judge's legal and administrative competence and omissions. (Id.)

Documents for Judicial Misconduct in California

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1347198 Supplemental Dec

194 pages

Kurtiss A. Jacobs, LL.M. (218950) Donald Sherill, Esq. (266038) AnthonyJ. DiPiero, Esq. (268246) HUNT & HENRIQUES, LLP 7017 Realm Drive San Jose, CA 95119-1321 Telephone (408) 414-0369 Facsimile (408) 360-8482 Attomeys for Portfolio Recovery Associates, LLC File no. 1347198 CA Debt Collection License No. 10136-99 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO 10 CENTRAL COURTHOUSE …