Justice Johnson Asks High Court to Review Ouster Order

Tuesday, September 1, 2020

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Justice Johnson Asks High Court to Review Ouster Order

Petition Says Jurist, an African American, Adds Diversity to the Bench; Commission Faulted for Decreeing His Ouster Rather Than Imposing Lesser Discipline; Says Evidence Is Slim

By a MetNews Staff Writer

Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One has urged the California Supreme Court to review the determination by the Commission on Judicial Performance that he be removed from office based on a pattern of sexual harassment and be allowed to keep his job, arguing, in part, that his ouster would impair the cause of promoting diversity on the bench.

“[T]he public ought not be deprived of the service of a brilliant diverse jurist especially now when protestors are scrutinizing law enforcement and the judiciary to demand an even-handed and impartial justice system,” a petition for review, filed Friday, argues.

His lawyers said that the commission’s June 2 order for removal comes after Johnson’s “ten years of distinguished service” as an appellate jurist “during which time his judicial opinions have been praised as scholarly and distinguished.” The petition notes his receipt in 2017 of the Judicial Council’s Distinguished Service Award based on his work on the Court Facilities Advisory Committee and Courthouse Cost Reduction Subcommittee and his “mentoring and encouragement to young men and women has had a positive impact on the lives of many.”

No Prior Discipline

It underscores that Johnson “has never received any prior discipline for conduct of any sort.”

Not averting to the removal of California Supreme Court Justice Marshall F. McComb in 1977 based on senility, the petition asserts:

“The order removing Justice Johnson was the first time a sitting appellate judge has ever been removed, and the first time that a judge at any level has ever been removed in a case involving neither willful misconduct nor prior discipline. In response to Justice Johnson’s argument that the remedy was disproportionate, the commission did not adequately explain why its choice of remedy here was significantly more severe. Instead, the commission observed that it need not show willful misconduct, prior discipline, or a failure to take steps to reform to remove a jurist from the bench.”

The petition makes several references to Johnson’s race. He’s an African American.

Observing that this is “a time when there is a dire need of a diverse judiciary,” it points out that if Johnson is ejected from office, “[o]ne of only ten African-American jurists on the California appellate courts will be removed.” It adds that that would be “based on findings that are not supported by clear and convincing evidence and in circumstances in which no California jurist on any state court has ever been removed before.”

It argues:

“Full participation of all racial and ethnic groups in the legal profession, including on the judiciary, is a vital state interest.…[T]rying to be sure that such individuals are included is an important interest for law schools and the legal profession.”

Alluding, though not expressly, to the “Black Lives Matter” movement that has gained momentum in the wake of the police killing in Minneapolis of an African American, George Floyd, proclaims “the need for diversity in the judiciary, especially at these pivotal times when the evenhanded treatment of African-Americans by the law enforcement and justice system is under such intense scrutiny.”

‘Implicit Racism’

The petition, signed by Costa Mesa attorney Paul S. Meyer and Michigan lawyer Mary Massaron, takes issue with the commission’s comments on Johnson’s claims of implicit racism.

The commission, in its decision, noted that Johnson, during the proceedings before it, accused Court of Appeal Justice Victoria Chaney, of his division, and two others, or “racism.” It said he asserted “that they were ‘invoking images’ of him that were ‘racist and stereotypical because they thought it would make their story more believable,’ adding:

“He also claimed the witnesses who observed him to be intoxicated at the courthouse were resorting to racist stereotypes of him ‘being a shiftless, drunk, lazy [B]lack man.’ ”

The decision continued:

“The masters found that the claims of stereotyping and racism were not supported by the evidence. We agree that there is no evidence to support Justice Johnson’s claims of stereotyping or racism….

“We…are troubled by Justice Johnson’s assertions that certain witnesses, whom the masters found credible, were lying or invoking racist stereotypes. These unfounded accusations compound the injury these witnesses have suffered as a result of Justice Johnson’s actions.”

The petition responds:

“If the commission or this Court uses an individual’s assertion that racist stereotypes may be in play as a basis for a harsher outcome, as it did here, it is hard to see how African-American litigants or any litigants can have confidence in the judiciary’s understanding of its own implicit biases or empathy and mutual respect in its efforts to overcome them.”

Supreme Court’s Statement

Johnson’s petition alludes to the California Supreme Court’s June 11 “Statement on Equality and Inclusion” in which the justices declared:

“In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all.”

The petition remarks:

“Surely, if this Court’s recent policy statement is to have any impact, neither the commission nor any court should use a litigant’s assertion that implicit bias may have formed the foundation for a decision against that litigant in determining the outcome or remedy. Yet, that is precisely what the commission did here.”

It adds that special treatment for African American jurists is not what is being sought, setting forth:

“All of this is not to say that an African-American jurist who engaged in the kinds of persistent and serious misconduct that has previously resulted in removal should be given better treatment. Nor is it an argument to suggest that no minority or diverse jurist can ever be removed. But here, the discipline imposed is disproportionate—strikingly so—and entirely unnecessary to protect the courts and the public. And that poses a serious threat to the public perception of the decision and to its faith in an evenhanded justice system.”

Desire to Reform

Meyer and Massaron disputed the commission’s conclusion that Johnson was incapable of reforming, saying:

“[T]he commission refused to even consider Justice Johnson’s conduct over the past two years because he voluntarily chose to be absent from the courthouse except during times when he was on the bench or needed to be there and gave notice. The commission’s refusal to lend any weight to this factor, given two years without incident, itself requires a reversal. Justice Johnson chose not to come to the courthouse to spare anyone who would be testifying from any discomfort by his presence. That is positive evidence of his sincere desire to reform.”

The petition continues:

“In addition, since the commission repeatedly considered charges against Justice Johnson that occurred outside the courthouse at social events, at area restaurants and bars, or at professional bar events, the commission’s reasoning lacks logic. That is, the absence of any misconduct in the past two years is strong evidence that Justice Johnson is capable of reform and that future misconduct is extremely unlikely. Since most of his prior misconduct took place outside the courthouse, the fact that he was largely working remotely does not undercut the strong evidence that he has reformed his conduct, as evidenced by the complete absence of any additional incidents, comments, or problems.”

Commission’s View

The commission said in its decision that Johnson “committed 18 acts of prejudicial misconduct and was found to have engaged in the unwanted touching of four women, to have engaged in conduct that would reasonably be perceived as sexual harassment of seven women at his court, to have misused the prestige of his position and demeaned his judicial office by attempting to develop personal relationships with three other young women, and to have further demeaned his office by his offensive conduct toward a fourth woman, as well as by multiple incidents of undignified conduct while intoxicated.”

It added:

“Justice Johnson’s refusal to admit to serious misconduct, and his intoxication, coupled with his failure to be truthful during the proceedings, compels us to conclude that he cannot meet the fundamental expectations of his position as a judge. Fulfilling the commission’s mandate—particularly with respect to maintaining public confidence in the integrity of the judiciary—can only be achieved by removing him from the bench.”