CJP Orders Orange Superior Court Judge Removed From Bench

Friday, June 27, 2008

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CJP Orders Orange Superior Court Judge Removed From Bench

By KENNETH OFGANG, Staff Writer

The Commission on Judicial Performance yesterday removed Orange Superior Court Kelly MacEachern from office, saying she engaged in willful misconduct by claiming reimbursement for attending judicial education classes that she did not, and was not authorized to, take.

“The lack of integrity manifested by her misconduct, compounded by her lack of candor in response to the commission’s investigation and deceitful testimony under oath before the masters compels our conclusion that removal is necessary to protect the public and maintain public trust in the integrity of the judiciary,” the commission said.

The commission voted 10-0 in favor of the willful misconduct findings and 7-3 in favor of the judge’s removal from office.

An attorney for MacEachern, Paul S. Meyer of Costa Mesa, said the judge would seek review by the California Supreme Court, but otherwise referred a request for comment to lead counsel Edward George of Long Beach. George was not available.

Ninth Judge

MacEachern becomes the ninth judge ordered off the bench by the CJP since it was given that power by Proposition 190 in 1995. Of the eight judges previously removed, six sought Supreme Court review, but none were successful.

No Orange Superior Court judge has ever been removed from office, either under Proposition 190 or prior to its passage, when the Supreme Court had the power to remove judges on the CJP’s recommendation.

MacEachern, who has been sitting at the Harbor courthouse in Newport Beach and completed a trial on Wednesday, is constitutionally barred from sitting pending the outcome of her petition for review.

The commission agreed with a panel of special masters—comprised of Court of Appeal Justices Judith Ashmann-Gerst of this district’s Div. Two and Tami Canti-Sakauye and San Joaquin Superior Court Judge George J. Abdallah Jr.—that found that the judge engaged in willful misconduct.

Allegations Sustained

The masters sustained nearly all of the allegations in the commission’s notice of formal proceedings, which called the judge to task for events surrounding her attendance at a continuing judicial studies program in San Diego in 2006.

Prior to her trip, she signed up for a class entitled “Excellence in Judging.” Entry into the class was denied by the program because MacEachern, who was elected to the bench in 2002, did not have the eight years of experience required.

In turn, she attempted enrollment in an evidence class.

MacEachern was again denied admission, this time because the class was full. At this point, prior to leaving for San Diego, the only class she was validly enrolled in was a one-day lecture.

MacEachern was given advance notice by AOC Senior Attorney Bonnie Pollard that since she was attending a one day class, only one night at the Hyatt Regency Islandia Hotel would be paid for by the state. The other four nights were consequently paid with her personal credit card.

The masters and the commission found that MacEachern was dishonest in later claiming $220 in reimbursement for two additional nights. The commission noted that the conference coincided with the week that MacEachern’s husband, defense attorney Michael McClellan, had visitation with his twin daughters, suggesting that the court was being used to defray the cost of a family vacation.

When questioned about the discrepancy between the longer stay and the one-day class, MacEachern explained in an email to the court travel coordinator that there was “a mix up with my registration,” so she “sat in on the judicial excellence class on Monday” and “sat in on the Thursday a.m. D.V. [Domestic Violence] class.”

A reimbursement request was given to Orange Superior Court Presiding Judge Nancy Stock, who had her executive assistant conduct an investigation into the claim. It was determined that the judge did not sit in on any classes, and that there was no mix-up with her registration.

Stock confronted MacEachern, who admitted that she provided misleading information in order to get reimbursed for her expenses before withdrawing her claim.

MacEachern testified before the masters that she did not intend anything improper, and that her email was being misconstrued. The CJP agreed with the masters, however, that the judge’s “arrogance is unyielding” and that her statements about the matter, including her claim that she sat in on the Judicial Excellence class for 10 to 15 minutes and never intended to claim she attended the entire class, were “patently misleading.”

Her conduct, the commission said, was “manifestly unjudicial” and in bad faith.

The CJP rejected arguments that the judge had a good-faith belief that she was entitled to reimbursement for the extra days because she was attempting to get into the additional classes, and that any improper actions did not constitute willful misconduct—and thus were not ground for removal, only for lesser discipline—because they were committed in a personal, rather than a judicial, capacity.

The commissioners wrote:

“We fail to understand how Judge MacEachern could have thought she was entitled to reimbursement for hotel expenses and meals for appearing at the conference site and making unsuccessful inquiries about enrolling in additional classes or, more importantly, how this provided her license to mislead [the travel coordinator]. Judge MacEachern acted in bad faith by sending a deceitful e-mail in support of her reimbursement claim, regardless of whether her motivation was monetary or an unjustified sense of entitlement.”

MacEachern was acting in a judicial capacity, the commission went on to say, because her request was directed to a court official and concerned attendance at a judicial conference.

Lesser discipline cannot be justified, the commission said, for “a judge who engages in an act of materially deceitful and fraudulent conduct in her judicial capacity and subsequently responds to the commission’s investigation by parsing words, offering disingenuous defenses and false testimony.”

The commission’s vice-chairperson, Fourth District Court of Appeal Justice Judith McConnell, was joined in the decision by San Francisco Superior Court Judge Katherine Feinstein, attorney Marshall B. Grossman, and public members Samuel Hardage, Barbara Schraeger, Maya Dillard Smith, and Nathaniel Trives.

The dissenters, attorney Peter Flores and public members Lawrence Simi and Sandra Talcott, agreed that the misconduct was “highly egregious” but argued that the judge’s lack of prior discipline, reputation in the community, and expressions of remorse before the commission, and the fact that no litigants were harmed, warranted “severe” public censure rather than removal.

MacEachern, 53, was a deputy district attorney in Orange County from 1981 until her election to the bench, after having been a deputy Long Beach city prosecutor for a year.

A graduate of UCLA and Southwestern Law School, she taught elementary school in Barrow, Alaska and in Long Beach before becoming an attorney. She is a past president of the Association of Orange County Deputy District Attorneys.