Tuesday, February 12, 2002
Outside Counsel Clears CJP Director of Conflict of Interest Charges
Retired Judge Cites Appearance Problem, but Says Misconduct Probe Was Not Compromised
By KENNETH OFGANG, Staff Writer
Commission on Judicial Performance Director/Chief Counsel Victoria Henley was not required to disclose that her husband was attorney for the plaintiff in a pending lawsuit against a judge being investigated by the commission, the retired judge overseeing an independent investigation said in a report released yesterday.
“Ms. Henley’s work on the [Patricia] Gray matter was not a conflict of interests under California law,” retired U.S. District Judge Charles Legge of the Northern District of California said in a report released by the commission. “Ms. Henley has not violated any applicable law or regulation as a result of her involvement in the proceedings with Judge Gray.”
Henley’s involvement in the investigation of Gray, a former Sonoma Superior Court judge accused of violating ethics rules in connection with her unsuccessful reelection campaign two years ago, did create an appearance of impropriety, Legge said.
But that involvement did not affect the commission’s decision to charge Gray with misconduct, the handling of the case by the commission staff, or the prosecution of the malpractice case, the retired jurist concluded.
Not an Endorsement
The release of Legge’s report was accompanied by a statement from the commission, which said the release of the report “should not be construed as an endorsement of all the representations, findings, and conclusions expressed” by Legge.
But the commission also disclosed that it had asked Attorney General Bill Lockyer to assign an attorney to advise the commission on how to proceed “in light of the appearance of a conflict of interest” on Henley’s part.
Both Legge’s conclusion and the commission’s request for appointment of counsel from the Attorney General’s office were criticized by Los Angeles attorney Mark Geragos, who represents Gray.
There are “massive constitutional problems with what they’re trying to do,” Geragos told the MetNews. “They basically conceded that the conflict has infected the commission,” he said, adding that the idea of bringing in counsel from the Attorney General’s Office had been brought up “on the fly” to avoid what Geragos argues is the only solution—dismissal of the proceedings.
Geragos said he and his co-counsel were asked to provide input into Legge’s investigation with respect to the conflict-of-interest charges, but were not given the opportunity to discuss how Henley’s marriage to Boli and her knowledge that he was suing Gray affected his client’s rights.
Geragos previously brought a federal civil rights suit, claiming the proceedings against Gray violate her free-speech rights under the First Amendment. The action was dismissed under the abstention doctrine, the judge finding that to hear the case would be an unwarranted interference with the ongoing state proceedings.
Geragos has argued that disclosure of the fact that Henley and Boli are spouses would have changed the outcome of the federal suit, because it would have shown that the commission was not an impartial forum—a recognized exception to the abstention doctrines.
Legge’s report, he claimed, showed that Jerome Falk, the San Francisco attorney who represents the commission in the federal case, made “outrageous misrepresentations” in order to get his suit dismissed.
Legge, a federal judge for 17 years, concluded that the outcome of the federal suit would not have been different.
Legge, who retired from the federal bench to become a private judge last year, was retained by the commission in November after Gray’s lawyers raised the conflict-of-interest charge.
They said they had discovered through a search of property records that Henley was married to Michael Boli, whose clients claim Gray missed a statute-of-limitations date while in private practice before her election to the bench in 1994.
Gray was defeated in the last election by Elliot Daum, who had been a deputy public defender. The commission charged Gray with having violated the ban on comment on pending cases, and on creating an appearance of partiality, based on certain statements in her campaign literature critical of Daum and some of his courtroom tactics.
Geragos argued that Henley helped bring groundless charges against his client, perhaps in order to obtain leverage in the malpractice suit.
Legge said he reviewed records provided by Boli and by attorneys for Henley and Gray, and interviewed a dozen witnesses, including Henley and Boli. His investigation did not disclose any conduct by Henley to suggest that she attempted to pressure other staff members or to steer the Gray probe toward the filing of charges against the judge, Legge said.
Among those interviewed was former commission chair Daniel Hanlon, a retired Court of Appeal presiding justice who is now, like Legge, a private judge affiliated with Judicial Arbitration and Mediation Services.
Hanlon confirmed that Henley told him about her husband’s suit against Gray, and that they agreed that any actual conflict was remote but that Henley should excuse herself during the actual presentation of the Gray case to the commission, Legge reported.
Another attorney presented the case, with Henley not present, and the commission voted unanimously to pursue the charges, Legge said.
Copyright 2002, Metropolitan News Company