Metropolitan News-Enterprise


Friday, July 16, 2010


Page 3


Commission Slates Argument in Discipline Case Against Placer Judge


By a MetNews Staff Writer


The Commission on Judicial Performance has slated arguments Aug. 25 in San Francisco in the misconduct case against Placer Superior Court Judge Joseph O’Flaherty.

A panel of special masters found last month that the jurist, who turns 64 this month and has been in office more than 22 years, had violated the Code of Judicial Ethics.

Fifth District Court of Appeal Justice Stephen J. Kane, San Bernardino Superior Court Judge Larry W. Allen, and Sonoma Superior Court Judge Allan D. Hardcastle made up the panel.

They said the judge abused his authority by calling a small claims plaintiff back into court after his case was dismissed and ordering him to stay away from the defense witnesses, even though there were no allegations of harassment made during the hearing.

In the December 2008 small claims case leading to the current proceeding, O’Flaherty dismissed a suit brought by Scott Herold, a used car dealer, claiming, among other things, that Golden One Credit Union had interfered with his sale of an automobile.

After the case was dismissed, Herold left the courtroom. But when two employees of the credit union expressed fears that Herold would come after them, the judge instructed the baliff to “bring that guy back.”

O’Flaherty was quoted as saying “I think frankly, I’m going to put it bluntly, I think you’ve been abusing these people and I don’t like it” to Herold on a videotape of the small claims trial that was played at the master’s hearing.

The minute order for the proceeding reflects that Herold was told to “have no contact with defendants or restraining order will be issued” and that he was to stay away from that particular credit union branch for 90 days.

According to The Recorder, a San Francisco legal newspaper that covered the hearing, the judge testified that he did not intend to issue any order, merely to warn Herold against confronting the women outside the courthouse.

Herold testified at the hearing that he was “in shock” at O’Flaherty’s actions and assumed that the judge had issued a restraining order against him.

“I was expecting an apology from the judge” when O’Flaherty summoned him back to the courtroom, Herold said. “Instead I felt like I was being prosecuted.”

O’Flaherty said he was “absolutely sure” at the time that Herold understood that he was not subject to a restraining order but a warning — a warning that if he contacted the defendants an order would likely be issued.

Allen asked O’Flaherty what he would have done if Herold had refused in court to comply with the judge’s “warning.”

“I would have done everything I could do to get another judge involved because I wouldn’t want it to look like I was embroiled,” O’Flaherty said.

The masters found that the judge issued an improper order.

O’Flaherty chose to contest the matter, thus coming before the commission for formal proceedings for the second time, rather than accept a public admonishment proposed by the commission. He was publicly admonished in 2004 for telling potential jurors that if they had racial attitudes that would make them unfit to serve on juries trying minority defendants, it was preferable for them to lie rather than reveal those attitudes in open court.


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