Is the CJP Emulating Supreme Court Misconduct of 22 Years Ago?

Monday, November 19, 2001

Page 8

PERSPECTIVES (Column)

Is the CJP Emulating Supreme Court Misconduct of 22 Years Ago?

By ROGER M. GRACE

One fruit of the Commission on Judicial Performance’s 1979 televised hearings on alleged misconduct by members of the California Supreme Court was the revelation of the court’s consistent practice of circumventing the 90-day rule.

The justices would routinely execute declarations under penalty of perjury at the end of each month saying they had no cases pending before them for more than 90 days. Such affirmations were (and are) a prerequsite to judges getting paid. In truth, oral argument had been held in spates of cases more than 90 days earlier, and those cases were, as the term is commonly understood, “pending.” Through sly maneuvering, the justices avoided an acknowledgement of that. The standard procedure was to desist from filing an order of submittal upon completion of oral argument. The justices took whatever time they wanted to in resolving the cases, and the chief justice then filed the order of submittal five days or so before the opinion was issued. In short, the high court jurists used word games to skirt a constitutional provision.

In light of public disapprobation, the practice stopped.

The Commission on Judicial Performance is now apparently resorting to a similar ploy to avert a requirement of another constitutional provision, Art. VI, §18(j). That provision says:

“When the commission institutes formal proceedings, the notice of charges, the answer, and all subsequent papers and proceedings shall be open to the public for all formal proceedings instituted after February 28, 1995.”

I noted here on Nov. 5 that the commission does not make the notice of charges immediately available, but delays public access for days or weeks—such as in the case of Riverside Superior Court Judge Eugene Bishop. The commission on Aug. 22 ordered the institution of formal proceedings against the jurist and CJP Chair Michael Kahn signed the “notice of formal proceedings” (the commission’s pleading) that same day. Public access to any information on the case was delayed until Sept. 17.

CJP Director-Chief Counsel Victoria Henley has finally responded to my letter of Oct. 26 in which I inquired as to the commission’s basis for delaying the release of information. In a letter faxed late last Monday, Henley provided this rationale:

“As respects any period of delay between the signing of a notice of formal charges and the filing of the notice, as your letter notes, some delay can occur in connection with service of a notice of charges (rule 118 (c)). Rule 122 (c) also requires that discovery be made available by trial counsel at the time of service of the notice, which can also cause some delay. And, as you note, formal proceedings are not announced until at least five days after service of the notice upon the judge.”

Neither in my letter nor my column did I mention anything about the “filing” of the notice. Apparently, Henley equates the filing of the notice with the institution of formal proceedings. From her letter, I gather the following: that the notice is not “filed” by the commission until after it is served on the judge and after non-privileged documents are provided to the judge; that the commission regards the filing of the notice as the event constituting the kick-off of formal proceedings; and that the commission views Art. VI, §18(j) as creating no duty of public disclosure until the notice is “filed.”

Is that view correct? Henley might well be right in her assumption that proceedings are instituted when the notice—an accusatory pleading—is filed. The point she misses, however, is that there is no arguable justification for failing to file that notice upon execution of it by the commission’s chairperson.

It’s true that Rule 118(c) requires service of the notice on the judge. But it does not require nor contemplate a delay in filing the notice until the service is effected. Rule 122(c) does require that certain documents be provided to the judge at the commission’s offices. Again, the rule does not require nor contemplate a delay in filing the notice until those documents are provided.

Proceeding on the assumption, for the moment, that the filing of the notice does constitute the commencement of the formal proceedings (and thus the public’s right of access) there are reasons why a delay in the filing should not occur:

•Art. VI, §18(j) establishes a policy of openness of CJP proceedings once they get past the investigatory stage. That policy—initiated by the electorate in approving Proposition 190 in 1994—is defied where the commission finds artificial justifications for delaying public access.

The electorate’s quest to bring some sunshine into the halls of the commission started in 1988 when voters approved Proposition 92. It ended the blanket policy of secrecy in connection with commission proceedings. Art. VI, §18 was amended to provide that the commission “may” open hearings to the public where charges involve moral turpitude, dishonesty, or corruption” and authorized the issuance of press releases.

Six years later came Proposition 190. Among the changes effected was the revamping of Art. VI, §18 to read as it does at present, mandating that papers and proceedings be open to the public once formal proceedings are instituted.

The commission sought a narrow reading of the new provision. In 1997, The Recorder, a San Francisco newspaper serving the Northern California legal community, sought to ascertain how each member of the commission voted in connection with a particular disciplinary matter, and wanted the tallies in connection with future disciplinary decisions. The commission resisted disclosure, maintaining that the constitutional provision mandating openness once formal “proceedings” are instituted only pertains to evidentiary “hearings” (held by masters), treating the terms “proceedings” and “hearings” as synonyms. A trial judge issued a writ compelling the commission to provide the information; the commission appealed; the Court of Appeal, in Recorder v. Commission on Judicial Performance (1999) 72 Cal.App.4th 258, affirmed.

The appeals court found that “the voters of California have spoken quite clearly by approving a measure designed to ‘eliminate secrecy’ in proceedings for judicial discipline.” That goal, it found, would be frustrated by allowing the commission the secrecy it claimed.

Retired Court of Appeal Presiding Justice Michael Phelan, sitting on assignment to the First District’s Div. Three, wrote:

[T]he history of the constitutional provisions governing judicial discipline in California shows a trend toward greater openness and less secrecy, and that evolution continues with Proposition 190.… The 1988 and 1994 amendments also reflect the growing desire of the voters of California to limit the discretion of those in charge of the machinery of judicial discipline to determine which aspects of the process may be conducted behind closed doors. Thus, the law prior to passage of Proposition 190 permitted open “hearings” in certain circumstances, while the language of the 1994 amendments mandates that “all ... proceedings” subsequent to the filing of formal charges must be “open to the public.” ( 18(j).) This history suggests that the drafters of Proposition 190 purposefully chose the broader term “proceedings” over “hearings,” the term that was being replaced, and meant to maximize the openness of formal disciplinary proceedings of the commission.

The notion that the commission may defer filing the notice, thus granting itself an extension of the period in which it may act secretly, flies in the face of Proposition 190 and its goal of maximizing openness of CJP proceedings.

•Delay in filing the notice is foreclosed by one of the commission’s own rules. Rule 107 says this:

“After institution of formal proceedings, the service of the notice of formal proceedings shall be made as set forth in rule 118….” (The emphasis is mine.)

If service must come “after” formal proceedings are instituted, and the action causing them to be instituted is the filing of the notice, logic dictates that the filing of the notice precede the service of it. There’s simply no way to avoid that conclusion.

Filing followed by service comports with the general rule in litigation that a complaint is filed before it is served.

•A commission set up to enforce ethical standards should not itself behave unethically.

If formal proceedings are “instituted” when the notice is “filed,” and if “filing” connotes a stamping of the document, it follows that the obligation on the part of the commission to make the matter public is not triggered until the notice is file-stamped. But the question then emerges: is the CJP, in delaying the filing of the notice—thus buying itself a prolongation of the secrecy in which it prefers to operate—not engaging in the same sort of delaying tactic the Supreme Court justices were guilty of when they deferred filing orders of submittal?

All this presupposes that it is the formal filing of the notice which gives birth to the formal proceeding. There is support for that view. Three other views are also arguable. Under any of the four views, however, the commission is remiss in not releasing information on proceedings earlier than it does.

The views are:

•The filing of the notice constitutes the initiation of proceedings.

There is authority to that effect from the California Supreme Court, albeit in the form of dicta. (There is, however, also dictum to the contrary from the same court.)

In 1975, the high court mentioned in Cannon v. Commission On Judicial Qualifications, 14 Cal.3d 678: “The proceedings herein were initiated by the filing of a notice of formal proceedings on July 8, 1974.” That court made note in Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630 that “the decision to initiate formal proceedings with the filing of formal charges is preceded by the Commission’s preliminary investigation.”

The commission has, in the past, publicly expressed the view that the filing of the notice creates the start of a proceeding. Disciplinary decisions of the commission typically recite: “Formal proceedings in this matter commenced with the filing on [date] of a Notice of Formal Proceedings….”

Assuming that the filing of the notice is what triggers a “formal proceeding,” and if “filing” connotes the stamping of the document, the conclusion is compelled that a proceeding is not “instituted” until the notice of that proceeding is stamped. Operating under this assumption, the commission acts in derogation of its responsibilities in delaying the filing.

•The proceedings are instituted when the judge is served.

This view has the least going for it. However, it can’t be dismissed out of hand. The California Supreme Court said in Kloepfer v. Commission On Judicial Performance (1989) 49 Cal.3d 826: “The formal proceedings commenced with the December 17, 1986, service on petitioner of a notice of formal proceedings….”

The notion that proceedings are initiated by the service of the accusatory pleading is not supported by analogy to procedures in other types of cases.

In any event, under this view, information on a disciplinary case may not be withheld from the public once the judge is served.

•The proceedings are instituted when the commission votes that the charges against a judge be pursued.

This comports with what the commission put in its last four annual reports. Each report said: “At such time as the Commission orders formal proceedings, the matter becomes public.”

It is entirely reasonable to take the position that the commission “institutes” formal proceedings upon ordaining that they are to occur. Once the commission has voted to charge a judge with misconduct, the prescribed acts by the chairperson in signing the notice of formal proceedings and the staff in serving the notice necessarily follow. The vote sets in motion the formal proceedings, construing the term “formal proceedings” broadly, as The Recorder decision approves doing.

This alternate view of the commission that proceedings are initiated when the commission orders them to take place is consistent with the wording of the notices. They don’t warn that proceedings will start as soon as the notice is filed. Rather, they say:

“YOU ARE HEREBY GIVEN NOTICE, pursuant to Rules of the Commission on Judicial Performance, rule 118, that formal proceedings have been instituted….”

Under this view, any inquiring member of the public would have a right to be advised by the commission staff of the decision to file charges once the vote has been taken, and even before the notice has been executed by the chairperson. This scenario would appear to conform to the intent of the drafters of Prop. 190. The provision calls for an end to confidentiality “[w]hen the commission institutes formal proceedings,” and it is realistic to conclude that the commission does that upon directing the staff to proceed.

•The proceedings are instituted when the chairperson signs the notice.

The accusatory pleading is not completed and ready for filing until it is signed. But once a signature is affixed, the document could well be regarded as being filed at that time.

For the commission to file a document, it need not go to a filing window. Indeed, all papers in any given disciplinary case are part of the commission’s file. Once the chairperson of the commission signs the notice (unless the chairperson proceeds to carry it off or hide it) it would seem that it is a filed document—i.e., part of the file.

If the filing of the notice signals the beginning of the proceedings, and the signing of the notice and placement of that notice in the file constitutes a “filing,” the proceedings are underway once the notice is signed. Applying Art. VI, §18(j), the notice would be immediately subject to public viewing.

Rule 119.5, providing that a document is filed “when the original is stamped or otherwise marked ‘filed’ with the date,” could be cited for the proposition that the notice is not filed until it is stamped. However, the rule is somewhat ambiguous. It begins with the words, “After institution of formal proceedings….” The entire rule appears to relate to the period after formal proceedings commence. Under that interpretation, it cannot be applied to the very document that activates formal proceedings. Too, it seems to apply only to documents filed with the commission by an accused judge.

Henley made note in her letter that “formal proceedings are not announced until at least five days after service of the notice upon the judge.” This is so under Rule 188(d) which provides: “Not less than five days after service of the notice of formal proceedings as set forth above, the commission shall issue a public announcement advising that formal proceedings have been instituted, and shall make public the notice of formal proceedings.”

Pursuant to this rule, the commission announces the institution of formal proceedings in a press release, with a copy of the notice attached. This procedure is not mandated by the constitutional provision, which requires only that the proceedings be “open” to the public, not that an affirmative effort be made to publicize them. To the extent the rule requires more than the constitutional provision requires, it is sound and commendable. The prohibition on disseminating the press release and notice prior to a certain time, on the other hand, is of somewhat questionable validity. In no event, however, can this rule be used to justify concealing the notice and the fact of the institution of formal proceedings from members of the press or general public who make specific inquiry after the time those proceedings have commenced.

Art. VI, §18(j) envisions an immediate end to confidentiality—not a termination of it at such time as the commission gets around to issuing a press release.

Henley ended her letter by saying she would bring my concerns to the attention of the commission during its Dec. 5-6 meeting. Somehow, I do not anticipate that the matter will presented to the commissioners in such a way that they will see the error of the CJP’s ways and vote to change them.