Judges Should Not Enjoy Impunity From Prosecution for Perjury

Wednesday, September 16, 2015

Page 6

EDITORIAL

Judges Should Not Enjoy Impunity From Prosecution for Perjury

We decry the decision of Humboldt County District Attorney Maggie Fleming to desist from even launching an investigation into the conduct of Humboldt Superior Court Judge Dale A. Reinholtsen.

The Commission on Judicial Performance on Sept. 3 publicly admonished the judge based, in large part, on his filing seven affidavits falsely stating that he had no matters before him that had been awaiting decision for 90 days or more. Under the 90-day rule, payment of a judge’s salary is postponed until he or she catches up on rendering over-due rulings.

It is uncontested by the judge that he filed false affidavits. If he knew they were false when he filed them—and the commission made no finding on that matter—he committed the felony of perjury.

N A STATEMENT IN RESPONSE to an inquiry by this newspaper, Fleming declared that “criminal charges are not appropriate in this matter.” She explained that the commission—which she said “has a primary role in monitoring the conduct of judges” and is “in a strong position to evaluate conduct in the context of a judge’s duties and overall performance”—had opted not to remove the judge from office, which it has the power to do.

The commission, however, does not make calls as to the criminality of offenses. It did not determine whether the mental element of the crime of perjury was present. Rather, it simply determined that Reinholtsen, in filing the false affidavits, “violated his duties under canon 2A” of the Code of Judicial Ethics “to respect and comply with the law and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.”

The commission’s decision, though in no way binding on Fleming, is, of course, illuminating. The uncontested administrative determination that Reinholtsen made false statements under oath points to a high probability that the judge did commit perjury. It is conceivable, but barely so, that he just didn’t know that there were matters before him that were past-due for decision. Does he so contend? Are there indications to the contrary? The need for Fleming to at least investigate is manifest.

A salient point missed by Fleming is that the commission has a mission quite different from that of a district attorney’s office. The commission disciplines for violations of canons. A district attorney’s office seeks criminal convictions of those who commit crimes. If there is probable cause to believe that Reinholtsen committed perjury, he should be prosecuted—not viewed as being impervious to being dealt with in the criminal courts simply because an administrative agency conducted disciplinary proceedings.

If an attorney stole from his client trust fund, would Fleming view prosecution “not appropriate” because the State Bar has disciplinary authority over the thief? If the State Bar were to opt not to disbar the attorney would this be regarded as a form of exoneration, rendering prosecution “not appropriate”?

The fact that the commission did not opt to remove Reinholtsen from office does not mean that it will not subsequently do so. Should he be convicted of perjury, and that conviction becomes final, the command of Art. VI, §18 would come into play: “the Commission on Judicial Performance shall remove the judge from office.”

LEMING ARGUES THAT PROSECUTIONS should not take place just to “send a message”—a valid point. She goes on to say:

“It is my belief based on my review of the Commission’s report that, after a trial placing the actions of the judge in context, it would be highly unlikely that a jury would reach a guilty verdict.”

There is nothing in the commission’s written decision that even remotely suggests a weakness in a case for the prosecution. As a practical matter, Reinholtsen might well actually be an unfavored defendant, in this era of distrust of lawyers and judges…exemplified by a jury’s rejection in recent years of a seemingly sure-win personal injury claim by then-U.S. District Court Judge George Schiavelli

With respect to the filing of false affidavits, the commission’s decision says:

“On or about December 27, 2011; February 27 and June 23, 2012; January 30, April 3, and August 13, 2013; and July 14, 2014, Judge Reinholtsen signed and submitted salary affidavits pursuant to Government Code section 68210 in which the judge falsely declared that no cause remained pending and undetermined that had been submitted to him for decision for the period of 90 days prior to the effective date of each affidavit.”

Those are admitted facts.

What Fleming does—quite dishonestly—is to mix apples and oranges. In connection with the filing of false affidavits, the commission sets forth no factors in mitigation. With respect to Reinholtsen’s failure, as presiding judge, to make sure that all judges (including himself) were current in their workloads, the administrative body says:

“The commission recognizes that a judge’s workload may make prompt decision of all matters submitted to the judge impossible. This is particularly true in counties in which the average workload exceeds the statewide average, which appears to be the case in Humboldt County.”

What the commission said was that failure to decide cases within 90 days was, under extreme circumstances, understandable. It did not say—and it would have been scandalous if it had said—that falsely stating under penalty of perjury that something had been done which hadn’t been was acceptable in light of high workloads.

Yet, Fleming writes:

“In particular, extreme workloads for judges may create situations in which meeting the 90-day window for matters under submission is not in the overall interest of justice. I have reviewed the Commission’s findings and I believe the Commission overstated the opportunity for Judge Reinholtsen to re-assign work to other judges. Humboldt County judges all face persistently extreme workloads. The state has determined that to give Humboldt County judges reasonable workloads two additional judges would be needed.”

Fleming is obviously more gifted as a politician—and a sleazy one—than a lawyer.

If the workload of Humboldt County judges is excessive, and more judges are indeed needed, that’s a matter for the Legislature to determine.

But an excessive workload in any particular court presents no conceivable excuse for a judge of that court who is behind in deciding matters to state falsely, under oath, that no cases have been pending before him or her for 90 days or more.

F, IN MAKING HIS FALSE STATEMENTS, Reinholtsen knew they were false, the judge is a perjurer, and rather than having the power to send felons to prison, he should be himself placed there.

Reinholtsen, whose office tries cases before judges, is obviously pandering to them through her non-action and calling attention to her county’s need for more judges.

A prosecutor has discretion as to whether to prosecute—but that discretion can be so grossly abused as to amount to dereliction of duty. That’s what we have here.

There is a smoking gun. Fleming shrugs her shoulders. If the gun is in the hand of a judge, she’s not going to prosecute.

It is to be hoped that Attorney General Kamala Harris has the guts and sense of duty to do what Fleming won’t.