Monday, November 5, 2001
Page 7
Perspectives (Column)
CJP Maintains Secrecy in Defiance of State Constitutional Command
By ROGER M. GRACE
The Commission on Judicial Performance on Thursday announced that it had filed formal charges against retired Riverside Superior Court Judge William H. Sullivan based on a “pattern of improper financial dealings and fiduciary activities.”
The fact that such charges have been filed is proof of impropriety. No, I don’t mean impropriety on the part of Sullivan—that has yet to be established. It’s proof of improper conduct on the part of the commission.
The impropriety surely does not rise to the level of CJP Director-Chief Counsel Victoria Henley’s recently bared conflict of interest. She’s under fire (and rightly so, it would appear) for her failure to disclose that her husband, whose surname is different from hers, is the lawyer handling a lawsuit against former Sonoma Superior Court Judge Patricia Gray. Henley and her staff are “prosecuting” Gray on disciplinary charges. The impropriety I’m going to discuss, though less egregious, does entail a hefty measure of bad judgment.
Commission members and staff, just like judges or anyone else, are expected to follow the law. The law says that once formal charges are filed, the matter is public—period. The commission may not avoid that law by relying on internal rules or policies. The law is part of the state Constitution, placed there by voters who were fed up with excessive secrecy surrounding commission activities.
The commission’s most recent meeting was held Oct. 10-11 in San Francisco. I telephoned the commission on Oct. 26 and inquired if any public actions were taken at that meeting, such as institution of formal proceedings. I was told that a hearing on “Judge Gray” had been postponed indefinitely but that “nothing else is happening with public discipline.” I asked: “So they took no public actions?” The response: “No.”
In light of charges having been levelled at Sullivan, it’s clear that the response was inaccurate. Suspecting at the time that it was, I faxed a letter to Henley on Oct. 26, and also mailed it to her. The letter said, in part:
“I telephoned the commission today and inquired whether any public actions, such as institution of formal proceedings, had been taken at the Oct. 10-11 meeting. I was told ‘no.’ Keeping in mind the requirement of Art. VI, §18(j) that such matters be ‘open to the public,’ was a correct response given?”
Henley did not respond to the letter.
The constitutional provision, added in 1994 by Prop. 190, says this:
“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.”
Rule 102(b) parrots that the notice of formal proceedings and subsequent papers that are filed “shall not be confidential.”
I don’t discern any ambiguity there. Once the commission voted on Oct. 10 or 11 to bring charges against Sullivan, the action became a public matter. No member of the commission or its staff was privileged to conceal it.
The commission was not required to issue a press release at the conclusion of its meeting announcing what public actions it had voted to take. In fact, it has formal internal rule precluding it from making a public announcement for at least five days. It was, however, in light of the constitutional provision, obliged to release accurate information in response to any inquiry.
The rule is a curious one. It’s CJP Rule 118. It says that if a judge who’s being investigated hasn’t agreed to service by mail of formal charges, personal service has to be attempted. However, it’s only necessary to hunt for the judge for 10 days. After that, service by mail service is just fine. By whatever means service is effected, a public announcement must be made, but this is to take place “[n]ot less than five days after service.”
This mandated delay in the issuance of any public announcement would appear to violate the spirit, at the very least, of Prop. 190. However, even if the rule is a valid one, it can only justify a delay in issuing a press release; it cannot excuse keeping secret the filing of charges against a judge from a member of the public making inquiry. The filing of charges is an event which, upon its occurrence, is non-confidential, under the constitutional proviso, and Henley and her staff are without lawful authority to conceal it for any amount of time.
I can understand the motivation behind Rule 118: to avoid the press finding out about, and reporting on, the filing of charges against a judge before the judge is informed of it by the commission. But obviously, that objective can be realized by use of fax, e-mail, or telephone.
The effect of the rule is that public announcements of the public actions often are not made for weeks.
For example, the commission’s previous get-together was on Aug. 22 and 23 of this year. On the latter date, CJP Chair Michael Kahn signed an order instituting formal proceedings against San Joaquin Superior Court Judge Michael E. Platt for alleged ticket-fixing. Public announcement of that action did not occur until Sept. 5, 13 days later.
It was not until Sept. 17 that the CJP announced the institution of formal proceedings against Riverside Superior Court Judge Eugene R. Bishop based on denying parents or custodial grandparents the right to be heard in custody matters. That action had been taken on Aug. 22. No explanation was provided for the delay of more than a month in the public release of the information. I asked Henley in my letter to her about the circumstances surrounding that delay but, as I noted, she did not reply.
Sometimes, it’s true, a public announcement is made sooner than that. On Feb. 29, 2000, the commission brought charges against then-Los Angeles Superior Court Judge Patrick Murphy—a judge who was receiving full pay for no work and attracting widespread attention in the news media. A press release was issued March 6.
The commission announced immediately its May 10, 2001 decision to yank Murphy from office. The commission acted notwithstanding that it had learned Murphy had already resigned. It was primed to remove him so it did, not deterred by the small matter of impotency to remove someone from a post that person no longer holds.
Here’s the chronology: on Tuesday, May 8, the CJP contacted the Governor’s Office and was advised that a resignation from Murphy had not been received; the commission geared up to oust the malingering jurist; on May 9, there came to be an awareness that Murphy had resigned (and the MetNews reported in the next day’s edition that Murphy was now a former judge, but could “still be censured by the commission and barred from receiving assigned judicial work”); on May 10, the commission, with full knowledge of the resignation, said to Murphy, in effect, “You can’t quit, you’re fired,” purported to remove him.
Henley said at the time that the commission would take no further action in the matter, pointing out that it has no procedures for rehearing or reconsideration. However, it did take another action in the Murphy case. It took the action during its meeting on July 19 and 20. The commission converted the order for removal from office into a public censure with a prohibition on Murphy receiving any judicial assignments.
It did not make any public announcement of that fact.
It is possible to learn of the censure by examining documents posted on the Internet. There’s no heading that heralds the action. There is a heading that reads “Decision and Order Removing Judge Murphy From Office.” A hyperlink next to that heading says “MURPHY-DISCIPLINE.” One would reasonably assume that the hyperlink leads to a page containing the “Decision and Order Removing Judge Murphy From Office,” and nothing more. It does contain something more: the portion of the minutes of the July 19-20 meeting showing the revised action against Murphy, as well as correspondence including Murphy’s letter of resignation.
In fairness to the commission, it did set forth in its May 10 order removing Murphy from office that “[i]f it is determined that Judge Murphy has resigned prior to this order of removal, this decision shall be considered a public censure of former Judge Patrick B. Murphy and a bar from receiving any assignment, appointment, or reference of work from any California state court.” However, it never issued a public announcement that it had made such a determination, entailing, as it does, a realization that its removal order was made in error.
It said in its order that it “believes that it is still within its authority to impose the discipline Judge Murphy merits, his removal from office.” It said in its final press release concerning Murphy that it had removed the judge from office and its decision would be final in 30 days, subject to review by the state Supreme Court. When it altered the nature of the discipline it mistakenly imposed, a sense of responsibility should have dictated that it make a public announcement of that fact.
But a sense of responsibility, regrettably, has not guided the commission during the past decade, with Henley as staff chieftain. This is in marked contrast to the previous three decades, under Jack Frankel.
The electorate, in passing Prop. 190, signalled that it wanted the commission to become accountable, and, once formal charges are filed, to act in the daytlight, in full view of the public. The commission has been resistant to fullfilling voters’ wishes. In many other ways, detailed in this newspaper through the years, the commission has, under Henley, acted with arrogance and capriciousness. A change of personnel—and I refer in particular to Henley—is needed.
Copyright 2001, Metropolitan News Company