Metropolitan News-Enterprise


Friday, May 17, 2013


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CJP Adopts Rules Amendments Opposed by CJA


By a MetNews Staff Writer


The Commission on Judicial Performance yesterday released amendments to its rules of procedure, including two proposals that were opposed by the California Judges Association.

The commission said in its announcement that it had approved the changes at a May 8 meeting, adopting, with some modifications, the proposals circulated for comment in January.

The commission amended its rules 110 and 111 to incorporate existing practice that provides judges with limited disclosure of complaints. Judges are told in general terms what they are accused of, but do not get to see the actual complaints or learn the identities of the complainants at the investigative stage of the process.

CJA had urged the commission to adopt broader early discovery.

The association’s proposal, made late last year, would have required the commission to provide judges with the names of witnesses and copies of investigative materials before the judge responds. But the commission, in an explanation attached to yesterday’s report, reiterated what it said when it rejected the proposal in January.

The commission said the proposed early discovery—current rules require that such disclosure be made only after formal proceeds are commenced—would have a chilling effect on complainants. It noted that the only state that allows such early discovery is Alabama, and that the number of complaints filed in that state dropped significantly after the rule was introduced a decade ago.

The commission yesterday acknowledged that a few states besides Alabama do provide accused judges with either the complaint or the identity of the complainant before the judge is required to respond to the charges. But none of those states provide the full discovery that CJA proposes, the commission said.

The commission also noted that it had received comments in support of the proposed rule from court employee unions and law professors who said the proposal would correctly balance judges’ rights against the need to protect whistleblowers. The CJP also cited Supreme Court rulings upholding its procedures as consistent with due process.

The commission yesterday also approved a new rule 111.4 adopting the standard for discipline based on legal error set forth in Oberholzer v. CJP (1999) 20 Cal.4th   371, which held that a judge could not be disciplined merely because the commission believes he erroneously interpreted the law. The standard permits discipline when legal error is accompanied by bad faith, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or a purpose other than the faithful discharge of judicial duty—the so-called “Oberholzer plus factors.”

CJA argued in its comments that the amendment fails to make clear that a judge cannot be disciplined for pure legal error.

“Along with the increase in the number of advisory letters issued by the commission, there has been a corresponding increase in complaints from our membership that the commission is initiating staff inquiries and preliminary investigations, and issuing advisory letters for legal error alone,” CJA President Alan Hardcastle wrote to the commission.”

CJA proposed that the rule permit issuance of an advisory or “stinger” letter based on legal error only if there was “clear and convincing extrinsic evidence that the judge committed that act as a result of” one of the “plus factors.”

The CJP denied it had issued stinger letters under circumstances outside the Oberholzer standard and cited several cases in which judges were disciplined—appropriately, it said—for conduct that would fall outside the CJA’s parameters.

One of those was the case of a Placer Superior Court judge publicly admonished for encouraging potential jurors to lie about their possible racial bias during jury selection.

While accepting the conclusion of a panel of special masters that Judge Joseph W. O’Flaherty acted in a good faith attempt to avoid seating biased jurors, the CJP said his actions in two cases nonetheless merited discipline.

The CJP said in its decision:

“At some point, a judge’s obliviousness to the consequences of the means to a given end may override, as a matter of law, a judge’s statement of subjective good intent.”


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