Wednesday, February 22, 2006
Ross Asks S.C. to Overturn Removal From Office
By Kenneth Ofgang,Staff Writer/Appellate Courts
Former Los Angeles Superior Court Judge Kevin A. Ross has asked the California Supreme Court to overturn the Commission on Judicial Performance’s Nov. 16 order removing him from office.
San Francisco attorney James A. Murphy filed the petition for Ross last Tuesday. A ruling in Ross’ favor would not restore him to the bench, since he resigned Jan. 12, but it would “clear his good name,” the attorney said.
It would also assure his right to practice law and open the possibility of his serving as a judicial officer in the future.
The commission found that Ross violated defendants’ constitutional rights, made improper comments to the media, used his office in an effort to promote a tasteless concept for a television program, and prevaricated when confronted by the commission about his conduct.
“The evidence...convinces us beyond any doubt that Judge Ross has demonstrated that he lacks the temperament and ability to perform judicial functions in an even-handed manner,” the commission said in a 9-0 decision with one member recused and one recently appointed member not participating
In his filing, Murphy argued that the commission deprived Ross of his rights to “due process and fundamental fairness,” that basing his removal on media comment deprived him of his free speech rights, that he cannot be removed for his role in the proposed television program because was not acting in a judicial capacity, and that he was being unfairly punished for having defended himself before the commission.
The commission found that Ross engaged in four instances of willful misconduct—the most serious level of misconduct under the commission’s rules—plus two instances of prejudicial misconduct and one instance of improper action.
“In addition, there is clear and convincing evidence of a pervasive lack of candor and accountability on Judge Ross’s part during the proceedings, compelling the conclusion that he is fundamentally unsuited to be a judge,” the commission wrote.
In the review petition, Murphy attacked the “candor and accountability” standard as vague, and claimed the commission never told Ross that it was accusing him of lying to it and never specified, prior to rendering its decision, which of his statements it considered deceitful..
Murphy also criticized the commission’s finding that Ross committed prejudicial misconduct by commenting on the KCET public television program “Life and Times Tonight” about the high-profile case of a Northern California sex offender seeking to become the first person released from commitment under the Sexually Violent Predator Act.
Ross’ comments on Patrick Ghilotti, the commission found, went beyond mere explanation of legal procedure. “The judge’s comments about the Ghilotti family wealth, the defendant’s charisma, the fact that people were watching, and the reckless suggestion that politics may drive the outcome of the case were both unseemly and potentially prejudicial to the litigants,” the commission found.
Murphy contended that those comments fall under an exception that allows a judge to make limited comments on pending cases in the context of “legal education programs and materials.”
The CJP said that language refers to publications and programs for the judiciary or the bar, not to comments aimed at the general public. Murphy argued that if the canon is interpreted that narrowly, it violates the First Amendment.
Murphy further argued that Ross did not, as the commission found, engage in willful misconduct by participating in the filming of a pilot for a television program which the commission called “degrading to the judge and all the participants” and in the course of which his name and title were used for promotional purposes and he arbitrated actual disputes.
Ross acknowledged problems with his 2002 arrangement with a production company for the show, to be called “Mobile Court.” Ross was to resolve small claims cases, with the parties stipulating to be bound by his rulings. What was to distinguish this from other programs of the genre was that the case would be decided at the scene of the dispute, rather than in a simulated courtroom.
In the pilot, Ross went to a city street to resolve a quarrel between two neighbors accused of vandalizing each others’ cars, then moved on to a strip joint to decide whether a contestant had been unfairly disqualified from a “Miss Wet on the Net” contest.
The commission noted that judges are not allowed to serve as private arbitrators and are prohibited from using their titles and official positions to advance their own private pecuniary interests or anyone else’s.
Murphy argued that Ross’ role in the project did not rise to the level of willful misconduct, citing a prior Supreme Court ruling that willful misconduct can only be found based on actions undertaken in a judicial capacity. Since Ross was acting in the capacity of a private arbitrator rather than a judge, Murphy argued, the willful misconduct finding was erroneous.
Murphy went on to say that it was unnecessary to remove Ross in order to protect the public. “In stark contrast to the facts of other removal cases, and as noted by the [special masters who heard the evidence in the case], none of the misconduct in this matter involves corruption or moral turpitude,” the attorney wrote.
“Judge Ross’ conduct is readily distinguishable from the morally corrupt conduct of those judges who have been removed in the past by the Commission,” Murphy continued. “Without the elements of corruption or moral turpitude, the judicial system and the public can be adequately protected by a public censure. As repeatedly emphasized by this Court, the purpose of these proceedings is to protect the public, not to punish the judge."
Copyright 2006, Metropolitan News Company