CJP Issues Public Admonishment of Sacramento Jurist

Tuesday, May 17, 2016

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CJP Issues Public Admonishment of Sacramento Jurist

By KENNETH OFGANG, Staff Writer

The Commission on Judicial Performance yesterday publicly admonished Sacramento Superior Court Judge Jaime R. Román for abuse of his authority and violation of due process rights in connection with contempt proceedings, imposition of sanctions, and other actions on four occasions.

The commission found that during a 2010 trial, Román sentenced a witness to three days in jail for contempt, finding at the conclusion of his testimony that he had “flipped off the clerk during the administration of the oath.” Although the judge did appoint counsel the next day, the witness—who claimed his hand merely twitched because of arthritis—had already spent a night in jail.

Judges must follow correct procedures before holding witnesses or others in contempt, which Román failed to do because he did not offer the witness notice and an opportunity to be heard until after he imposed the sentence, and did not promptly issue a written order explaining the facts, the CJP said in its decision. The commission cited four prior cases in which it had publicly disciplined judges for not knowing or ignoring proper procedures in contempt matters.

Second Incident

In a second incident that occurred during the same 2010 trial, Román sanctioned an assistant public defender $150 for failing to appear at a court conference at the end of the previous day. Although he did listen to the attorney’s explanation for the nonappearance, he did not give her prior notice he was considering monetary sanctions, the commission said.

The third episode occurred during a family law hearing in 2012, when the judge imposed $25,000 in sanctions against one of the litigants and the party’s counsel. Although the judge told the commission during its investigation that he believed a sanctions motion had been filed, no such motion, oral or written, appeared in the record, nor were the party or the attorney given notice that sanctions were being considered, the CJP found.

In addition, the judge awarded the opposing party $34,000 in costs and attorney fees, also without notice and an opportunity to be heard, the commission found.

Although the judge later vacated all of the awards in the family law case, the CJP rejected his explanation that he had merely made a mistake. The orders, it said, “raised an appearance of lack of impartiality and embroilment,” as indicated by the fact that the judge “granted” motions that had never been made, failed to make statutorily required findings, and reported the sanctioned attorney to the State Bar.

“Judge Román had been a judge since 2007 and had been presiding in family court for a year and a half before he issued this order,” the commission said. “He had the opportunity to become familiar with the statutes and rules governing pretrial attorney fees and costs, and sanctions. He acknowledged in his response that motions for such attorney fees and costs were ‘all too common.’”

Fourth Incident

The fourth incident involved a 2012 child custody hearing involving Steven Wessels, the same attorney the judge had sanctioned earlier. The mother was asking for an order requiring that the father return the 16-year-old daughter’s iPhone and iPad, along with other property in his possession.

Wessels, representing the father, objected on the ground of insufficient notice, and said the father was not present because he believed all issues had been resolved by stipulation. Román, who told the commission he believed the daughter was the rightful owner of the devices because she was the only party with a passcode, ordered him to return the items forthwith.

This was an abuse of authority and due process, the commission said, because the judge was aware that the mother had not given ex parte notice by 10 a.m. of the prior court day, as required by local rule. Román’s claim that no harm was done because father’s counsel was present, the commission said, “ignores the governing rules and the purpose of notice, i.e. protection of the party’s constitutional right of due process.”

The commission further rejected the implication that counsel was necessarily aware of the facts to which the father could have testified if timely notice had been given, and the judge’s claim that father was aware that the mother was seeking an order to turn over the devices. Earlier documents cited by the judge did not refer to the phone and did not put the father on notice that the issue would be considered on a particular date, the CJP said.

“In the commission’s view, it was contrary to due process principles to expect rather to dispute in advance a demand that had not yet been made,” the CJP said in the decision.

In each of the four incidents, the commission found, the judge violated ethical canons requiring that a judge “respect and comply with the law” and that “accord to every person who has a legal interest in a proceeding…the full right to be heard according to law.” The conduct “constituted improper action”—the least serious form of misconduct justifying discipline—“at a minimum,” the CJP added.

Commissioners voted 9-0 to issue the notice of intended public admonishment, which the judge did not contest. Contra Costa Superior Court Judge Thomas Maddock was recused for unspecified reasons, and public member Richard Simpson did not participate.

Román, now 65, was the presiding administrative law judge for the Office of Administrative Hearings in Sacramento from 1994 until his appointment to the bench by then-Gov. Arnold Schwarzenegger nine years ago.

Previously, he served as a state deputy attorney general from 1992 to 1994.

Román is a graduate of Hastings College of the Law, and earned a Master of Laws degree from Boston University and a bachelor’s degree from Saint Mary’s College. His name was sent by Schwarzenegger to the Commission on Judicial Nominees Evaluation in 2009 as a possible candidate for elevation to the Third District Court of Appeal, but the seat eventually went to Maria Elena Duarte, who was also a Sacramento Superior Court judge at the time of her elevation.