Wednesday, June 27, 2007
CJP Rebukes Judge Over Delayed Rulings, False Salary Affidavits
By TINA BAY, Staff Writer
The Commission on Judicial Performance yesterday publicly censured an Alameda Superior Court judge for violating rules of conduct by failing to decide cases on time and falsely swearing that he was keeping up with time limits.
Judge Robert J. Freedman’s misconduct was of such gravity as to warrant his removal from office, the commission said, but the presence of mitigating evidence justified reducing the punishment to a “severe public censure.”
The commission adopted factual findings made by a panel of special masters, who found by clear and convincing evidence that Freedman delayed rulings in 21 of the 23 cases over which he was charged in a notice of formal proceedings last May.
It also agreed with the panel that Freedman, as accused in the notice, regularly signed and submitted false salary affidavits to the county during times when he was aware his rulings were overdue.
State Law Requirements
Under the state Constitution, judges are barred from receiving salary while any matter remains pending before them without decision for 90 days after it has been taken under submission. State law requires that every judge file a salary affidavit each month attesting to compliance with the time limit, and prohibits the controller from issuing the judge’s paycheck if the affidavit is not filed.
The special masters, appointed by the Supreme Court, found Freedman delayed rulings between 2000-2004, and filed false affidavits within the periods of June 2000-April 2001, August 2002-February. 2003, and June 2003-November 2004.
The commission concluded his actions amounted to prejudicial misconduct, the second most serious category of judicial misconduct. Not as severe as willful misconduct, the category covers acts done in “bad faith,” or with knowledge of or disregard for the fact that the conduct is unjudicial and prejudicial to public esteem of the judicial office.
Explanation for Delays
With respect to the delays, the commission adopted findings that Freeman either failed to use the court’s computerized management system to effectively track his cases, had an erroneous understanding of when a matter was considered submitted to him, or simply failed to act on matters within 90 days of their submission. It rejected Freedman’s explanation that in some cases, his other commitments interfered with his ability to decide pending matters.
Freedman’s professional activities during the relevant time included voluntary participation in administrative activities for the court and Judicial Council of California, chairing the court’s Information Technology Committee and co-chairing a statewide group working on rules for temporary judges.
“While these activities may be laudable in the abstract, they do not excuse or mitigate his failure to attend to his first duty, to resolve the matters brought before him for judicial decision,” it stated.
The commission pointed to the fact that the court’s then-presiding judge, William McKinstry, had warned Freedman more than once concerning his decisional delays:
“To the extent Judge Freedman was distracted from his duty by these activities after he had been chastised by Judge McKinstry, they tend to aggravate rather than mitigate his misconduct.”
Concerning the false affidavits, the commission said it was “troubled” by the masters’ acceptance of Freedman’s argument that he was not consciously aware of his delayed matters when signing for his salary. But the commission said it would defer to the panel’s finding despite the evidence that Freedman was aware from reminders and requests that he had matters pending at the time he signed the affidavits.
In determining public censure as the appropriate discipline, the commission “emphatically” rejected Freedman’s argument that it should not remove him from office because no other judge has yet been removed for the same or similar conduct.
Previously, Fresno Superior Court Judge Robert Z. Mardikian was censured in 1985 for taking between 131 and 430 days to decide 14 cases. In 1998, Antelope Municipal Court Judge Pamela Rogers, who subsequently took disability retirement, was admonished for having seven cases under submission for more than 90 days.
The commission said its prior disciplinary decisions constituted only one factor in determining Freedman’s fate. Others factor were that Freedman appreciated his conduct and had not committed further misconduct since 2004.
But the commission focused primarily on evidence of Freedman’s reputation among colleagues and counsel to conclude:
“Apart from the misconduct charged in this matter, there is no evidence that Judge
Freedman lacks integrity, and there is strong evidence of his good qualities as a trial court judge. The esteem of his peers and his overall competence, work ethic, and superior ability, suggest that he is capable of reform, and that his removal from office is not necessary to protect the public.”
The commission gave little weight to Freedman’s single prior occasion of discipline, an advisory letter in 1998 for failing to timely substitute out of a matter as counsel before he was appointed to the bench.
The judge’s attorney, Joseph McMonigle of Long & Levit’s San Francisco office, told the MetNews the decision was “best that [Freedman] could have hoped for.”
“Judge Freedman is obviously relieved that it has been resolved, and he’s gratified that the commission recognized he’s a valuable member of the Alameda Court, and that he should continue to serve,” he said.
Freedman, 63, is a former assistant presiding judge of the court, and was appointed after the initiation of the disciplinary proceedings to serve as one of the two judges assigned to complex civil matters.
Then-Gov. Pete Wilson appointed him to the old Oakland-Emeryville-Piedmont Municipal Court in 1996 and elevated him to Superior Court in July of 1998. He currently sits at the Administration Building in Oakland hearing civil cases.
He has sat on the Judicial Council’s Civil & Small Claims Advisory Committee and has been a faculty member at the California Judicial College (1998-2002). He also chaired a Committee of Bar Examiners task force on online legal education.
Before his appointment to the bench, he was in private practice with the firm formerly known as Wald, Freedman, Chapman, and Bendes in Oakland for more than 25 years. He also served as an adjunct professor of law at John F. Kennedy School of Law, and is a former president of the Alameda County Bar Association and of the Alameda County Bar Foundation.
Freedman was admitted to the State Bar in 1969. He is a graduate of UCLA and Boalt Hall.
Copyright 2007, Metropolitan News Company