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Inquiry Concerning Judge
Patrick B. Murphy,
No. 157
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DECISION AND ORDER REMOVING JUDGE MURPHY FROM
OFFICE
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This disciplinary matter concerns Judge Patrick Murphy, a judge of the Los
Angeles County Superior Court. The commission, based on Judge Murphy’s absences
from court from 1996 through 2000, charged Judge Murphy with persistent failure
or inability to perform his judicial duties. Judge Murphy was also charged with
failing to give his judicial duties precedence over all other activities and
engaging in activities that interfered with the proper performance of his
judicial duties, and with exhibiting a lack of candor to his presiding judge
and failing to cooperate in the administration of court business. In addition,
the commission charged Judge Murphy with malingering in that he “falsely
claimed to be ill and/or medically disabled for the purpose of continuing to
collect [his] salary without performing [his] judicial duties.”
A panel of three justices, sitting as special masters, found that all the
charges were supported by clear and convincing evidence. For the reasons set
forth in this decision, the commission unanimously adopts the masters’ findings
of fact and conclusions of law and removes Judge Patrick B. Murphy from the
bench.
On May 4, 2001 the commission received a faxed document purporting to be
a letter of resignation from Judge Murphy to Governor Davis. Trial Counsel informs
us that as of the afternoon of May 8, 2001, the governor’s judicial appointments
secretary indicated that he did not have a letter of resignation from Judge
Murphy. Accordingly, the commission believes that it is still within its
authority to impose the discipline Judge Murphy merits, his removal from
office. If 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.
PROCEDURAL
HISTORY
On May 13, 1999, the commission sent
Judge Murphy an investigation letter requesting that he respond to allegations
of excessive absences. Judge Murphy responded with a letter first alleging that
the complaint to the commission was an attempt by his political opponents to
manipulate the commission. He then offered numerous medical explanations for
his absences including a thyroidectomy, a congenital non-fusion of his spine,
degenerative disc disease, cephalgia, sleep deprivation, stress, and “muscular
pain, joint pain and abdominal pains” of increasing duration, intensity and
frequency. In the course of the letter, Judge Murphy indicated that six
different physicians had treated him or given him medical tests.
Judge Murphy was less than forthcoming in providing the commission with
access to his medical files and his doctors. The commission was finally able to
arrange for an independent medical examiner to examine Judge Murphy in the fall
of 1999, resulting in a report dated November 23, 1999.
On January 14, 2000, the commission sent Judge Murphy another investigative letter requesting his response to allegations that he had failed to report for work on 157½ days in 1999.
Judge Murphy responded by letter dated February 15, 2000, by counsel, Mr.
Edward M. Moses, who complained that he had twice been denied extensions of
time to respond to the investigation letter. Mr. Moses represented that he
would be Judge Murphy’s attorney on an application for permanent disability. He
alleged that Judge Murphy had had a “syncopal episode” (a fainting spell) on
September 21, 1999, at the courthouse and had been unable to return to work
since then. The letter listed three physicians who were said to be of the
opinion that Judge Murphy was permanently disabled. Mr. Moses never filed a
disability application for Judge Murphy.
On March 3, 2000, the commission commenced formal proceedings against
Judge Murphy by filing a Notice of Formal Proceedings alleging that Judge
Murphy’s extensive absences from court violated the Code of Judicial Ethics. On
April 20, 2000, Judge Murphy, then represented by different counsel, filed a
verified answer admitting to some significant periods of absence but otherwise
denying all allegations.
The commission also continued its investigation of Judge Murphy and, on
March 31, 2000, sent Judge Murphy another investigation letter alleging
incidents of lack of candor with the presiding judge and of failures to
cooperate with judges and other court officials in the administration of court
business. Judge Murphy responded by letter dated May 5, 2000.
On July 7, 2000, the commission sent another investigative letter to
Judge Murphy – this time asking him to respond to allegations of teaching
evening classes on days when he took sick leave, and testifying at depositions
on days that he took sick leave. The letter also alleged that from July 1999
through December 1999, Judge Murphy, while absent on sick leave, took an
intense regiment of college science courses that were prerequisites to applying
to medical school and applied to medical school. It was further alleged that,
on January 1, 2000, Judge Murphy left Los Angeles and traveled to the island of
Dominica in the West Indies in order to attend medical school on the island.
Judge Murphy, now
proceeding without counsel, twice requested extensions of time in which to
respond to the July 7, 2000 investigative letter and never submitted a
response. On September 11, 2000, a First Amended Notice of Formal Proceedings
was filed that, in addition to the allegations of persistent failure or
inability to perform judicial duties (Count One), set forth specific
allegations of failing to give judicial duties precedence over other activities
(Count Two), five incidents of failure to cooperate in the administration of
court business (Count Three), and a charge of malingering by falsely claiming
to be medically disabled for the purpose of continuing to collect a judicial
salary without performing judicial duties (Count Four). On October 16, 2000,
Judge Murphy filed a verified answer claiming that he suffered a medical
condition that rendered him “unable to perform his judicial functions at the
relevant times.”
In the meantime, on April 21, 2000, in response to the commission’s
request, the Supreme Court appointed three special masters to hear and take
evidence in this matter and to report thereon to the commission. [1] A
prehearing conference was held and the evidentiary hearing was scheduled for
September 18, 2000 before the masters. Judge Murphy’s request for extensions of
time and ultimate failure to respond to the July 7, 2000 investigation letter
delayed the commission’s decision to issue a First Amended Notice of Formal
Proceedings, and required the cancellation of the scheduled September 18, 2000
hearing.
The commission, while sensitive to providing Judge Murphy with due
process, has been concerned that it could not proceed more expeditiously in
this case. Although the California Constitution [2] and the commission’s rules[3]
allow the commission to temporarily disqualify a judge, this requires a
determination that continued service “is causing immediate, irreparable, and
continuing public harm,” and the disqualification would be “without loss of
salary.” The commission had no choice but to marshal its evidence for
presentation to a panel of special masters.
A second
prehearing conference took place by telephone on Tuesday, October 3, 2000,
between the masters, Mr. Jack Coyle of the Office of Trial Counsel representing
the commission, and Judge Murphy, representing himself. All agreed that the
hearing could commence on January 22, 2001, and the commission issued an order
noticing the hearing to be held at the Court of Appeal, Fourth Appellate
District, Division Two in Riverside, California.
The evidentiary hearing commenced on January 22, 2001 and concluded on
January 25, 2001. The case in support of the charges was presented by Mr. Jack
Coyle, Esq., with Ms. Valerie Marchant, Esq., and Mr. Sei Shimoguchi, Esq. Judge
Murphy represented himself. The masters filed their seventy-page report with
the commission on April 5, 2001.
The parties were immediately sent copies of the masters’ report, informed
that they could file objections to the report and informed that they could request
an opportunity to be heard orally before the commission. Mr. Coyle submitted a
timely brief and indicated that he did not request a hearing. Judge Murphy did
not tender a brief or otherwise communicate with the commission. The parties
were informed on April 26, 2001, that absent objection, the matter would be
taken under submission by the commission on May 9, 2001.
FINDINGS OF
FACT
Judge Murphy has been a registered nurse since 1977. He enrolled in law
school in 1982, worked as a nurse throughout law school, and commenced private
practice as a lawyer when he was admitted to the bar in 1984. After several
years he became the administrator and corporate counsel of a medical group. He
remained in this position until he was elected judge in June 1992.
From 1993 through early 2000, Judge Murphy was assigned to the Citrus
Judicial District Municipal Court in West Covina. He presided over a portion of
the misdemeanor trial calendar during these years until he was reassigned to a small
claims/miscellaneous civil calendar in April 1999.
A. Absences (Count One)
In 1996, Judge Murphy had a subtotal thyroidectomy to remove a benign
tumor and began taking Levoxyl to make up for the lost thyroid function. Judge Murphy
was also regularly absent during his unsuccessful campaign for superior court
judge. Judge Murphy was absent from the court for 77½ days.
In 1997, Judge Murphy was the presiding judge. He missed a total of 66½
work days. Judge Murphy attributed his 29 days of sick leave to colds and flu
as well as a congenital non-fusion of his spine (spina bifada occulta), which
allegedly caused debilitating back pain. Judge Murphy’s physician, Dr. Eshom,
when called as a witness by Judge Murphy, testified that he did not think the
condition “was causing [Judge Murphy] a problem.”
In 1998, the
court records show that Judge Murphy was absent for 96 days. Judge Murphy
attributed much of his 28 days of sick leave to increasing back, neck and head
aches resulting in insomnia. During the summer, Judge Murphy took over 2½
months accumulated vacation time. A month was used for a trip to Ireland with
his mother and the rest was spent convalescing.
In 1999, Judge
Murphy was absent 159½ days of which 157 days were listed on the court records
as “sick” or “sick/personal” days. Judge Murphy was absent 2½ days in January,
6½ days in February, and all but one full day and four half-days of March. He
worked 2½ days in April and did not return to the bench until July 1, 1999.
The court records show no absences for Judge Murphy from then until a half day
of vacation on September 16, 1999. Judge Murphy had a fainting spell at the
court on September 20, 1999, and was taken to the hospital. He was absent from
the court for the rest of the year.
In 2000, Judge
Murphy was absent from court until April 3, 2000, when he commenced an
assignment in the Los Angeles Metropolitan Court handling traffic matters, one
of the least stressful assignments available to judges. Judge Murphy ceased
working as of June 8, 2000 and has never returned to the court.
B. Activities that
Interfered with the Proper Performance of Judicial Duties (Count Two)
1. From before
1996 through 1998, Judge Murphy taught or co-taught one or two classes a term
on weekday evenings at Glendale University College of Law. The classes ran from
6:30 to 9:30 p.m. The masters found that on five days in 1996, on five days in
1997 and on two days in 1998 when Judge Murphy claimed he was too ill to work
during the day, he taught or co-taught classes at night.
The masters also found that Judge Murphy taught a one or two hour session
of the Baldwin Park Police Department’s Citizen’s Academy during the week of
March 22, 1999, on a day that Judge Murphy was absent from work on sick leave.
In
November 1998, a civil action was filed in a federal court alleging a scheme to
hide approximately 1.7 million dollars. Judge Murphy was named as a defendant
in the action in April 1999. He was also named as a defendant in a related
adversary bankruptcy proceeding. Judge Murphy testified that the cases were
subsequently dismissed against him.
The masters
found that on five dates in 1999 when Judge Murphy was absent from work on sick
leave, he attended and testified at his depositions in these lawsuits.
In July
1999, Judge Murphy began formal preparations for applying to Ross University
School of Medicine located on the island of Dominica in the West Indies. His
preparations included completing classes required for medical school.
He applied for admission to the Cleveland Chiropractic College in Los
Angeles and sought and obtained permission to enroll late in Physics I. Judge
Murphy completed Physics I and its corresponding lab by the end of August 1999.
The class and lab were taught in two five-hour sessions, one on Saturday and
one on Sunday, for a total of 10 class hours a week. Judge Murphy had perfect
attendance and earned an A in the lecture and the lab while not missing a day
in the courtroom.
On September 4, 1999, Judge Murphy enrolled in Physics II and Organic
Chemistry I and their corresponding labs. These classes were from 8:00 a.m. to
6:30 p.m. on Saturday and Sunday, for a total of 20 hours of class a week.
Although Judge Murphy had a fainting spell on Monday, September 20, 1999 for
which he was hospitalized, Judge Murphy attended 20 hours of classes on
Saturday, September 25, and Sunday, September 26. At the end of October, Judge
Murphy completed the classes with perfect attendance. He earned a B in Physics
II lab and an A in Physics II lecture, Organic Chemistry I lecture and Organic
Chemistry I lab.
On October 27,
1999, Judge Murphy enrolled in General Chemistry II and Organic Chemistry II
and their corresponding labs. One class was taught on Monday and Wednesday
evenings in five-hour sessions (5:30 –10:30 p.m.) and the other was taught in
five-hour sessions on the weekends, for a total of 20 hours of class a week.
Judge Murphy completed the classes in mid-December. He missed only one class
and earned A’s in the classes and the labs.
In November
1999, Judge Murphy completed the College Level Examination Program in Biology
(known as the “CLEP” test). He earned a score in the 99th
percentile. The CLEP test and the science classes at Cleveland Chiropractic
were all prerequisites for Judge Murphy’s medical school application.
On October 2,
1999, Judge Murphy filed an on-line application for Ross University. On the
application he indicated that he did not have any disabilities that would
interfere with the practice of medicine. On November 29, 1999, while on sick
leave, Judge Murphy had a one-hour application interview at the Ross University
office in Glendale, California. During the interview Judge Murphy was “very
upbeat, very articulate, very responsive, very coherent” and his health
appeared fine. When the interviewer asked the judge how his health was, he
responded by referring only to his thyroid condition, and told the interviewer
he had no health problems. Judge Murphy indicated that he was still interested
in and active in scuba diving and skiing and stated that he decided to apply to
medical school because “medicine was his first love, his first career desire.”
He requested an expedited response because he “must notify Governor Gray Davis
of his intent to resign his judgeship . . . .” Judge Murphy was accepted to
medical school the next week for the term commencing on January 5, 2000.
On December
17, 1999, as part of his visa application, Judge Murphy obtained a letter from
the Los Angeles County Sheriff’s Department to the Chief of Immigration in
Dominica attesting to his lack of criminal record and good character. The
letter stated, “Judge Murphy will be traveling to Dominica on a vacation.”
On December
21, 1999, Judge Murphy obtained a certificate of good health from Dr. Boutros
as part of his visa application. He did not obtain the certificate from Dr.
Eshom, his treating physician, because he knew Dr. Eshom would not certify that
he was in good health. The certificate listed Judge Murphy’s thyroid condition
as his only medical condition and listed Synthroid as the only medication that
Judge Murphy was taking.
On
December 27, 1999, Judge Murphy purchased a round trip ticket to Dominica with
a departure date of January 1, 2000, and a return date of April 22, 2000 (the
last day of classes at Ross University for the spring semester).
On
December 30, 1999, Judge Murphy faxed a disability slip signed by Dr. Eshom and
dated “12/31” from his house to the court, as he had done on a number of
occasions. The slip said, “Continues to be disabled. Unable to work until
further evaluation.” Judge Treu considered the slip unacceptable because no
specific end date had been given. He was unaware that Judge Murphy was about to
leave the country.
On
January 1, 2000, Judge Murphy left for Dominica. He did not resign his
judgeship and he did not inform Judge Treu, or any other judge or court
employee that he was leaving the country and planned to study medicine. In
Dominica, Judge Murphy registered for classes on January 5. Classes began on
January 5, and Judge Murphy picked up his picture I.D. card on January 9.
Judge Murphy
returned home on January 14, 2000. Judge Murphy denied knowing of any adverse
publicity about his attending medical school in the Caribbean prior to
returning home.
C. Incidents of Lack of
Candor and Failure to Cooperate in the Administration of Court Business
1. In January
1999, Judge Ralph Michael Treu became the presiding judge of the Citrus Judicial
District Municipal Court. Due to Judge Murphy’s extended absences for sick
leave, Judge Treu kept a log from January 7, to April 27, 1999. Judge Murphy
called in sick on January 20, and was not in on January 21. At a meeting with
Judge Treu on January 22, Judge Murphy told him that “he may need to take
significant time off in the future as directed by his physician.” He further
stated that he currently had no immune system left, that his thyroid condition
of 1995 and 1996 resulted in the removal of a malignant tumor and that his
current condition was serious. Judge Treu suggested that Judge Murphy take a
less demanding assignment doing a civil overflow/small claims calendar, but
Judge Murphy declined the proposal.
Judge
Murphy denied characterizing the tumor as malignant. He suggested that he may
have indicated that prior to the surgery there was concern that the growth to
be removed was malignant, but he maintains he did not tell Judge Treu that the
growth that was removed actually was malignant. Judge Murphy noted that he is a
nurse and “quite facile with employing medical terms” and he claimed that Judge
Treu “misconstrued” what he said because Judge Treu lacked medical training.
The
masters concluded that Judge Murphy lied about his condition to induce Judge
Treu to grant him additional sick leave, and the commission adopts the masters’
finding. The masters noted that Judge Treu testified that prior to taking the
bench he had 20 years in private practice focused on plaintiff’s tort litigation
and medical malpractice. The masters found that Judge Treu had sufficient
medical knowledge to understand the difference between a preoperative tentative
diagnosis of cancer and a postoperative finding of malignancy. The masters also
noted that Judge Treu summarized his conversations with Judge Murphy in a log
within 24 hours and that when he testified, Judge Treu was absolutely confident
that Judge Murphy told him the tumor was malignant. Finally, the masters
contrasted Judge Treu’s “clear, compelling, and credible testimony on this and
other issues,” with their finding that Judge Murphy’s testimony “generally
lacked credibility.”
2. On
March 4, 1999, four judges complained to Judge Treu that Judge Murphy’s
frequent absences required them to cover his misdemeanor calendar. Judge Murphy
was again absent on Monday, March 8, but worked on March 9, when he attended a
judge’s meeting. Judge Treu described the meeting as “acrimonious.” Judge
Murphy acknowledged that this characterization was correct and attributed his
actions to the “frazzled” emotional state he was in as a result of his medical
condition. Judge Murphy did not return to work after the March 9, 1999 judges’
meeting. He next returned to the court on Friday, March 26, 1999 for another
judges’ meeting.
On March 26, 1999, Judge Murphy told Judge Treu that he would not be at
work the following week because he was undergoing medical tests. Judge Murphy
claimed sick leave for the week of March 29, but did not undergo any medical
tests. Instead, on Tuesday, March 30, 1999, Judge Murphy appeared and testified
at his deposition in the civil action.
When first questioned by the commission about his representation to Judge
Treu, Judge Murphy admitted telling Judge Treu that he was having tests and
asserted that he could identify what tests occurred if he had his complete
medical records. In his verified answer, however, Judge Murphy admitted that he
did not undergo any medical tests the week of March 29, 1999, and labeled his
conversation with Judge Treu a misunderstanding. He claimed that he told Judge
Treu only that he anticipated undergoing medical tests and asserted that since
he had an HMO, the tests were performed at a later date. Judge Murphy further
stated in his verified answer that Judge Treu “was in the possession of a
medical certificate of disability dated March 9, 1999 and signed by Dr. Eshom,”
and that he did not mention the deposition because he was not thinking about
it.
The masters found that Judge Murphy did tell Judge Treu that he would be
absent the week of March 29, 1999, for medical tests when he would actually be
testifying at his deposition on March 30, 1999, and that the purpose of the lie
was to falsely claim sick leave instead of taking personal leave. The
commission adopts these findings of the masters. The masters cite Judge
Murphy’s shifting explanations and note that again Judge Murphy’s testimony
generally lacked credibility. They also point out that while a doctor’s note
dated March 9, 1999 for a two-month medical absence does exist in Dr. Eshom’s
file, “Judge Murphy provided no such note to Judge Treu; Judge Treu did not
have such a note, and Judge Murphy did not mention it during their
conversation.”
3. Judge Murphy was released from the hospital on September 22, 1999,
following his fainting spell on September 20. Shortly thereafter, Judge Treu
received a short note on one of Dr. Eshom’s preprinted prescription pads
saying, “No work x 2wks.” The masters found that such disability “slips” or
“certificates” or doctor’s notes, “usually did not come directly from the
doctor’s office, but were faxed from Judge Murphy’s home after normal business
hours.” Judge Treu received a second disability slip covering the two weeks
from October 7 through October 24, a Sunday.
On Thursday, October 21, 1999, Judge Murphy left a message with the
judicial secretary saying his doctor had him off for another couple of weeks.
No disability slip accompanied the telephone message. The next day, Judge Treu
wrote a letter to Judge Murphy acknowledging the communication and requesting a
doctor’s disability certificate. Although Judge Treu requested a doctor’s
certificate for the period of time from October 25 through November 16, 1999 in
three additional letters,he never received any documentation. Judge Murphy,
however, did provide disability slips from Dr. Eshom for the rest of his
absences through the end of the year.
The
masters note that when first questioned by the commission on this matter, Judge
Murphy stated that he did not recall seeing the letters from Judge Treu and
speculated that the letters may have been intercepted, destroyed or hidden because
he had been living in marital discord. Judge Murphy further indicated that if
he had seen the letters he may have told Dr. Eshom to send a note directly to
Judge Treu. In his verified answer, Judge Murphy asserted that his phone calls
were sufficient because there was no requirement that he provide any doctor’s
note.
The
masters found that Judge Treu’s request for medical documentation was justified
and that Judge Murphy did not provide any documentation supporting his absences
from October 25 through November 16, 1999. The commission adopts the masters’
findings.
4. As
noted, when Judge Murphy left the country on January 1, 2000 to attend medical
school in Dominica, he did not resign his judgeship and he did not inform Judge
Treu or any other judge or court employee that he was leaving the country or
that he was planning to study medicine or how to contact him.
Judge Murphy contended that he was not obligated to provide the court
with this information because he was on sick leave. The masters found that
Judge Murphy was obligated to keep the court informed of his whereabouts and
that he failed to do so. The commission adopts these findings by the masters.
The masters note that Judge Chavez testified that the policy of the Los Angeles
County Superior Court was to require judges away from the court to keep the
court apprised of their locations and a means to communicate with them. The
commission also notes that Judge Murphy testified that he occasionally
undertook some judicial functions such as signing warrants while on sick leave.
Judge Murphy also testified that when he left for Dominica he was
convinced that he was permanently disabled and that he thought that once his
disability application was filed he would no longer be a sitting judge. To the
extent that Judge Murphy proffers this as an excuse for his failure to keep the
court informed of his whereabouts, his argument is rejected. The masters found
that Judge Murphy’s “claim that he believed his lawyer would apply for his
disability leave is not credible in light of his training and sophistication
and in light of the fact that he knew he had signed no such documents.” Judge
Murphy could not reasonably believe that he was no longer a judge when he left
the country for Dominica.
5. On January 3, 2000, the judicial secretary faxed a ballot regarding
court unification to Judge Murphy’s home. On January 5, 2000, the secretary
telephoned Judge Murphy’s home and left a message to remind Judge Murphy that
he had probable cause duty on Saturday, January 8, 2000. She noted that he
could perform this duty at the West Covina Police Department or from his home.
On January 7, the secretary left another message asking about the ballot and
reminding Judge Murphy to respond as soon as possible about probable cause
duty. Judge Murphy was in the West Indies and never returned the phone calls or
the ballot. Another judge was assigned to perform Judge Murphy’s probable cause
duties.
The masters rejected Judge Murphy’s argument that he was not obliged to
respond because he was sick, and the commission concurs. As noted, Judge Murphy
testified that he on occasion performed judicial duties even when on sick
leave.
D. Malingering
1. Affirmative evidence
tht Judge Murphy was not ill.
The masters found that Judge Murphy was not ill in the sense that he was
unable to perform his judicial duties. They note seven factors to support their
finding that Judge Murphy could have performed his duties most of the time if
not all of the days that he called in sick, especially during the long absences
in 1999 and 2000.
a. When
Judge Murphy did go to work there were no observable signs of illness. Judge
Murphy’s colleagues at the municipal court uniformly testified that Judge
Murphy appeared to be healthy, energetic and positive when at work. There were
no indications that he was struggling with any medical conditions. One judge
did qualify his testimony by noting that there were times when Judge Murphy
appeared to be suffering from normal illnesses such as a cold or the flu, but
he continued that otherwise Judge Murphy “is probably the most upbeat and
happy-go-lucky type of person I’ve ever met.”
b. There were a number of instances when Judge Murphy was seen out in the
community when he was absent from work on sick leave. The reports of these
“Murphy sightings” consistently included that Judge Murphy appeared to be
healthy.
c. In
1996 and 1997 during the evenings on ten days he was on sick leave, Judge
Murphy taught three-hour law school classes. In 1998 he twice taught during the
evenings of days he was on sick leave.
d. The
masters note that Judge Murphy started taking pre-med classes for medical
school in July 1999, after returning to work following his nearly four months
of absences. They also note that he returned to work only after being informed
that the commission was investigating his absences. After taking 10 hours of
classes in July and August, Judge Murphy took 20 hours of classes a week from
September through the middle of December, 1999, earning all A’s except for one
B. He had perfect attendance, except for one absence. He even attended 20 hours
of classes on the weekend of September 26, 1999, following his fainting spell
on Monday September 20.
e. On five
days in 1999 when he claimed he was ill, Judge Murphy testified at his
depositions. The masters note that excluding lunch recesses, these depositions
involved three to six and a half hours of deposition time.
f. On
November 18, 1999, Judge Murphy took the CLEP test in biology and scored in the
top one percent. The masters note that Dr. Eshom testified that Judge Murphy’s
score showed that “he’s cognitively able to decipher information.”
g.
Finally, the masters found that his performance during the hearing before them
clearly demonstrated his capacity to serve as a judge. The masters explained:
During the
entire four days of hearing, Judge Murphy performed as an experienced and
skilled courtroom attorney. He generally showed no weakness, lack of attention,
slowness, or misunderstanding. He competently objected to evidence and argued
his objections. He conducted cross-examination in discrete segments aimed at
making specific points. After the first morning session on the second day,
Judge Murphy requested a recess until the next day because he was “really
feeling ill” and did not think that he could continue. His request was denied.
Although occasionally thereafter he complained of having a headache, his
competent performance and professional demeanor continued unabated.
2. Judge Murphy’s evidence that he was ill.
The masters found that Judge Murphy’s evidence was less than persuasive.
Judge Murphy reported having chronic, severe headaches, neck aches and
backaches (partially attributable to a congenital non-fusion of a lumbar
vertebra and degenerative disk disease) that prevented him from sleeping more
than a couple of hours a night. Judge Murphy represented that he also suffers
from chronic fatigue syndrome (CFS) and that this and other illnesses render
him physically incapable of serving on the bench. He thought that the genesis
of these symptoms was the hypothyroidectomy. Judge Murphy also claimed that he
had a phobic reaction to judicial duties that aggravated his symptoms. He testified
that he became frazzled because of these symptoms resulting in his “going off”
on his colleagues, such as he did in March 1999 to Judge Treu. Judge Murphy
said that he could perform other activities that he perceived as less
stressful, including his various extrajudicial activities.
The masters note that part of the weakness of Judge Murphy’s “phobia”
claim is its evidentiary failings. Only Judge Murphy and Dr. Eshom testified
about Judge Murphy’s physical and mental condition. Judge Murphy made repeated
references to diagnoses and other statements by Dr. McCord, who apparently was
his psychiatrist. Judge Murphy, however, chose not to call Dr. McCord and made
no representation that he was unable to do so. Furthermore, statements
attributed to Dr. McCord and other doctors’ hearsay statements were admitted by
the masters only for the limited purposes of showing how they affected Dr.
Eshom’s diagnoses or opinions and of explaining Judge Murphy’s subsequent
conduct and state of mind.
In his April 23, 1999 letter to Judge Treu, Dr. Eshom represented that
Judge Murphy suffered from chronic cephalgia (headache), fibromyalgia (body
ache) and fatigue syndrome. At the hearing, under questioning from Judge
Murphy, Dr. Eshom acknowledged that there was “no real scientific test that we
can order for these diagnoses” and that they were formulated based on symptoms
Judge Murphy presented when he came to his office. The April 1999 letter makes
no mention of any difficulties stemming from spina bifida or of any judicial
phobia.
Although Dr. Eshom in his testimony indicated that he would support Dr.
McCord’s purported “diagnoses of phobia, panic disorders, anxiety reaction
specifically to the court,” he did not explain why he would support such a
diagnosis. The record concerning the judicial phobia is devoid of any test
results allegedly conducted by Dr. McCord or any other supporting
documentation. No competent evidence was presented as to the basis for Dr.
McCord’s alleged conclusions or even of Dr. McCord’s background, experience or
competence.
Despite Dr. Eshom’s belief that Judge Murphy was disabled, some of his
testimony indicated that Judge Murphy was not disabled. Dr. Eshom testified
that Judge Murphy had not “lost his ability to analyze anything” and that his
high score on the CLEP test for biology shows that “he’s cognitively able to
decipher information.” Dr. Eshom acknowledged that there was no difference
regarding “physical ability or disability” between “sitting on the judicial
bench for five hours or sitting in a classroom for five hours.”
Although Judge Murphy claimed that a congenital anomaly in his back
caused him pain and cost him sleep, no documentation was presented to support
this contention. Dr. Eshom did not mention this condition in his April 23, 1999
letter. At the hearing, Dr. Eshom testified that he was aware of the condition
because Judge Murphy had told him about it, but that he did not independently
examine Judge Murphy because he didn’t think that it was causing Judge Murphy a
problem.
Judge Murphy and Dr. Eshom testified about Judge Murphy’s
elevated levels of Epstein-Barr virus. The tests purportedly showing these
elevated levels were not admitted into evidence, so this is unsupported
hearsay.[4] In fact, no documentary evidence of Judge Murphy’s
medical condition was offered or admitted, except Dr. Eshom’s April 23, 1999
letter, various disability slips, and Dr. Boutros’ health certificate.
Accordingly, Judge Murphy’s insistence that the Epstein-Barr virus was the
“causative agent” of CFS remains an unsupported self-serving assertion.
At the hearing, Judge Murphy elicited from Dr. Eshom an opinion that he
did not believe Judge Murphy was malingering. In support of that belief, Judge
Murphy cited Dr. Eshom’s board certification and experience in emergency room
medicine. The masters rejected this perspective noting that “Dr. Eshom’s
experience with emergency room malingerers in no way prepared him for dealing
with a malingerer with Judge Murphy’s degree of medical sophistication” and
that there was no “testimony that the emergency room malingerers were faking
fibromyalgia.”
The masters further noted that Dr. Eshom’s opinions were shown to be
suspect because of information Judge Murphy withheld about his nonjudicial
activities. Judge Murphy told Dr. Eshom that he was taking some chemistry and
physics classes, but he did not say he was taking five-hour classes two nights
a week and another five hours each Saturday and Sunday. When Dr. Eshom wrote a
disability slip for Judge Murphy following his fainting episode on September
20, Judge Murphy did not inform him that he intended to take 20 hours of
classes on the weekend. Although Dr. Eshom refused to acknowledge that this
information affected the validity of his diagnoses and disability slips, he did
testify that knowledge of these facts would have been “helpful.” He also
admitted that Judge Murphy as a registered nurse should have known this and
that Judge Murphy’s attendance of 20 hours of classes during the weekends did
not sound as if he were disabled.
Dr. Eshom tried to leave open the possibility that Judge Murphy’s
thyroidectomy might support the existence of his symptoms. In
cross-examination, however, he conceded that he monitored Judge Murphy’s
thyroid condition to keep it “in balance” and “close to normal.”
In addition, the evidence concerning Judge Murphy’s efforts to obtain
a disability retirement undermine his claim of being disabled. Judge Murphy
testified that he had intended to resign from the bench in the fall of 1999,
but that an attorney acquaintance, Mr. Moses, convinced him that he qualified
for a disability retirement. He testified that he did not investigate this
matter but relied entirely on the attorney. He testified that when he left the
country to go to medical school on January 1, 2000, he believed that his
attorney had filed a disability application. The masters, however, found that
his belief was not credible. Judge Murphy further testified that when he
returned from Dominica he attempted to get the necessary papers from Dr. Eshom
to complete the application, but was unsuccessful. There is no explanation as
to why a doctor who first stated that Judge Murphy was disabled in April 1999
and was the only witness called by Judge Murphy in the hearing in January 2001,
would not issue a report in January 2000. In any event, Judge
Murphy testified that he did not actually apply for disability retirement until
July 2000, that he received the commission’s tentative denial of the
application on November 16, 2000 and took no further action on the application. [5]
Judge Murphy’s initial reliance on his attorney, his failure to actually apply
for disability retirement until July, 2000 and his acceptance of a tentative
denial hardly constitute a robust presentation of his claim.
3. Judge Murphy’s lack of credibility.
The masters
listed several specific reasons for finding that Judge Murphy’s testimony
lacked credibility.
a. The
masters first point to the two false answers contained in Judge Murphy’s
medical certificate for Ross University. On December 21, 1999, Judge Murphy
went to Dr. Boutros’s office without an appointment and presented him with the
health certificate from Ross University. Dr. Boutros filled it out and returned
it to Judge Murphy that day. The completed certificate contained two
misrepresentations: (1) the only “present medication” listed was Synthroid; and
(2) only hypothyroid was listed in response to the question “condition(s) for
which you are being treated.”
Judge Murphy
testified that he did not go to Dr. Eshom because he knew that Dr. Eshom did not
think that he was fit to go to medical school. He also did not go to Dr.
McCord, who he claimed to have been seeing regularly for psychiatric treatment.
Judge Murphy had both a personal and medical relationship with Dr.
Boutros. Sometime before 1996, Judge Murphy conducted Dr. Boutros’ wedding in
Dr. Eshom’s house. Dr. Eshom and Dr. Boutros became partners, but in 1996, they
ended their partnership because Dr. Eshom believed that Dr. Boutros was “very
sloppy” and his character left “a lot to be desired.” Dr. Eshom never shared
his evaluation of Dr. Boutros with Judge Murphy, but Judge Murphy agreed that
Dr. Boutros was sloppy.
Dr. Boutros was one of the physicians involved in the diagnosis and
treatment of Judge Murphy’s thyroid tumor in 1996. After 1996, however, Judge
Murphy only saw Dr. Boutros every three or four months for such problems as
upper respiratory tract infections and colds. Judge Murphy’s medical
appointments with Dr. Boutros were only a “minute or two” in duration and
perfunctory. On these occasions Dr. Boutros did not ask, and Judge Murphy did
not say, what medications he was taking.
Judge Murphy denied responsibility for the falsehoods in the certificate.
He claimed he did not know what the certificate said and that Dr. Boutros
completed the form. He testified that he didn’t keep anything from Dr. Boutros,
but Dr. Boutros didn’t ask many questions. Judge Murphy also testified that he
knew that Dr. Boutros had only limited knowledge of his medical conditions.
The masters found that Judge Murphy knew that if “he did not inform
himself about the certificate and directly provide full information to Dr.
Boutros, the certificate would inaccurately represent his medical condition and
the medications he was taking.” They reported that Judge Murphy very much
wanted to go to medical school and that he believed that the university might
not accept him if they were fully informed of his medical condition and
medications. The masters note that Judge Murphy’s “apparent indifference to the
certificate and Dr. Boutros’s answers alone justifies an inference of his
indifference to truth when it is in his perceived interest,” and they continue:
We also go further and find Judge Murphy was responsible for the
falsehoods on the certificate to the same extent as if he had himself
personally read the certificate and written the false answers. Judge Murphy
selected Dr. Boutros precisely because Judge Murphy knew Dr. Boutros would
answer the questions falsely. Since Judge Murphy obtained false answers on his
certificate, we infer that Judge Murphy’s testimony generally lacks
credibility.
b. The masters next cite Judge Murphy’s contradictory statements to Judge
Treu and to Ross University. In January 1999, Judge Murphy told Judge Treu that
“he has currently virtually no immune system left, that his thyroid condition
of 1995 and 1996 resulted in the removal of a malignant tumor, and that his
current condition is serious.” The seriousness of Judge Murphy ’s condition
(without the characterization of the tumor as malignant) was reiterated by
Judge Murphy having Dr. Eshom write a letter to Judge Treu on April 23, 1999
stating that Judge Murphy should be considered disabled because in addition to
hypothyroidism, he had chronic cephalgia, syncope secondary to chronic
cephalgia, chronic fibromyalgia and CFS.
In contrast, at his application interview in November 1999, Judge Murphy
represented to the interviewer that he had no health problems other than that
he had had thyroid surgery earlier in life and took Synthroid to stimulate his
thyroid. Judge Murphy also indicated that scuba diving and skiing were “things
he was interested in and was still active in.”
c.
Third, the masters cite a couple of particular inconsistencies in Judge
Murphy’s testimony. Judge Murphy claimed that despite his judicial phobia he
could perform well as a law professor and as a student of demanding subjects because
they were enjoyable. The masters note that Judge Murphy also testified that he
loved being a judge. Judge Murphy testified that he could not return to the
bench because he could not get a doctor to release him. The record shows,
however, that in July 1999, after the commission began its investigation, and
in April 2000, following the filing of the Notice of Formal Proceedings, Judge
Murphy returned to the bench without any doctor’s “release.” The masters
conclude:
While Judge
Murphy appeared to have some kind of excuse for virtually every eventuality,
their variety and facility ultimately undermine his credibility. His responses
fail under the weight of their own inconsistency and strained ingenuity.
The
commission agrees with the masters and adopts their findings that Judge Murphy
was not ill in the sense that he was medically unable to perform his judicial
duties.
CONCLUSIONS
OF LAW
In this section the commission considers whether Judge Murphy’s actions
violate sections of the Code of Judicial Ethics and whether they constitute
actions for which discipline may be imposed under article VI, section 18(d) of
the California Constitution. This section of the Constitution provides that the
commission may
. . . censure a
judge or former judge or remove a judge for action occurring not more than 6
years prior to the commencement of the judge’s current term or of the former
judge’s last term that constitutes willful misconduct in office, persistent
failure or inability to perform the judge’s duties, habitual intemperance in
the use of intoxicants or drugs, or conduct prejudicial to the administration
of justice that brings the judicial office into disrepute . . . .
The Supreme Court in Broadman v. Commission on Judicial Performance(1998)
18 Cal.4th 1079, 1091 reiterated that to commit willful misconduct
in office, “a judge must (1) engage in conduct that is unjudicial and (2)
committed in bad faith, (3) while acting in a judicial capacity.” The Court
went on to explain that a judge “acts in bad faith only by (1) performing a
judicial act for a corrupt purpose (which is any purpose other than the
faithful discharge of judicial duties), or (2) performing a judicial act with
knowledge that the act is beyond the judge’s lawful judicial power, or (3)
performing a judicial act that exceeds the judge’s lawful power with a
conscious disregard for the limits of the judge’s authority.” (18 Cal.4th
at 1092.)
The Supreme Court then defined prejudicial conduct:
Prejudicial
conduct is distinguishable from willful misconduct in that a judge’s acts may
constitute prejudicial conduct even if not committed in a judicial capacity,
or, if committed in a judicial capacity, not committed in bad faith.
Prejudicial conduct is “ either ‘conduct which a judge undertakes in
good faith but which nevertheless would appear to an objective observer to be
not only unjudicial conduct but conduct prejudicial to public esteem for the
judicial office' [citation] or 'willful misconduct out of office, i.e.,
unjudicial conduct committed in bad faith by a judge not then acting in a judicial
capacity’ [citation].” (Doan v. Commission on Judicial Performance,
supra, 11 Cal.4th at 312, original italics.)
(18 Cal.4th at 1092-1093.)
Judge Murphy’s extensive absences as charged in Count One clearly
constitute a persistent failure or inability to perform judicial duties,
especially since the beginning of 1999. Judge Murphy concedes the extensive absences,
but claims he is disabled. The masters, however, concluded, and the commission
agrees, that Judge Murphy was not and is not disabled, and that he “has
persistently failed to perform his duties as a judge when capable of doing so.”
As alleged in Count Two, Judge Murphy considered his nonjudicial
activities more important than his judicial duties and allowed them to
interfere with his judicial duties. In doing so Judge Murphy specifically
violated canons 3A and 4A(3) as well as the more general canons 1 and 2A. [6]
The violations of the Code of Judicial Ethics constitute incidents of conduct
prejudicial to the administration of justice that brings the judicial office
into disrepute. They are not incidents of willful misconduct because Judge
Murphy was not acting in a judicial capacity when he engaged in these
activities.
The
five incidents of Judge Murphy’s failure to cooperate with his presiding judge
in the administration of court business alleged in Count Three violate canon
3C(1) and generally violate canons 1 and 2. [7] Judge Murphy’s statement to the presiding
judge that the benign thyroid tumor had been malignant constituted willful
misconduct because lying to his presiding judge is a violation of the judicial
canons, he was acting in his judicial capacity in discussing his assignments
with the presiding judge, and his lie was in bad faith for the purpose of
falsely obtaining sick leave. Similarly, Judge Murphy’s misrepresentation that
he would be absent for medical tests the week of March 29, 1999, constituted
willful misconduct because he violated the judicial canons, he was acting in
his judicial capacity and his purpose was to falsely obtain sick leave.
Judge Murphy’s failure to provide a doctor’s note for his sick leave
absences from October 21, 1999 through November 16, 1999 constitutes conduct
prejudicial to the administration of justice that brings the judicial office
into disrepute. The masters found, and the commission agrees, that the
presiding judge’s request for a doctor’s note was reasonable, and that in
failing to provide a doctor’s note Judge Murphy violated judicial canons.
Furthermore, the failure was in bad faith as it furthered his scheme – as found
by the masters – to falsely obtain sick leave.
Judge Murphy’s departure from the country and concomitant failure to keep
the court informed of his whereabouts, and his failure to respond to the
judicial secretary’s inquiry concerning probable cause duty also constitute
incidents of conduct prejudicial to the administration of justice that brings
the judicial office into disrepute. The masters found, and the commission
agrees that Judge Murphy’s leaving the country to attend medical school without
informing anyone of his plans, location or means to communicate with him
violated judicial canons. Judge Murphy’s failure to respond to the judicial
secretary’s inquiries as to where he would perform his probable cause duty
clearly violates canons 3A, 3C(1) and 4. Even if Judge Murphy did not know of
the judicial secretary’s inquiries, his inaction was in bad faith because by
leaving the country and not informing anyone of his whereabouts he prevented
the judicial secretary from contacting him.
As Judge Murphy did not suffer from any illness disabling him from
performing his judicial duties during his extensive absences in 1999 and 2000,
his falsely obtaining sick leave constitutes malingering as alleged in Count
Four. This conduct violates canons 1, 2A, 3A, 3C(1) and 4A(3) and constitutes
willful misconduct. Judge Murphy was acting in his judicial capacity in his
fraudulent use of sick leave. The masters concluded, and the commission agrees,
that Judge Murphy was motivated by a bad faith intent of remaining on the
payroll of the State of California as a full-time, sitting judge while avoiding
his judicial obligations.
DISCIPLINE
The commission is guided by the Supreme Court’s reiteration that the purpose of
a judicial disciplinary proceeding is not punishment, “but rather the
protection of the public, the enforcement of rigorous standards of judicial
conduct, and the maintenance of public confidence in the integrity and
independence of the judicial system.” [8] The commission finds that these purposes require the
removal of Judge Murphy from the bench.
The Supreme Court has observed that determining whether to remove
a judge from office, like choosing any other sanction is an art, not a science. [9]
Nonetheless, the commission finds that the Court’s opinions indicate that the
severity of the misconduct, the duration of the misconduct and evidence of
contrition and willingness to reform are relevant to a determination of what
discipline to impose. [10] It should be noted, however, that removal may be appropriate
even where these factors do not all weigh against the judge.
[11]
Judge
Murphy, in claiming sick leave when he was not disabled and lying to his
presiding judge, engaged in willful misconduct that displays moral turpitude
and dishonesty. The public will not, and should not, respect a judicial officer
who has been shown to have repeatedly lied for his own benefit. The Supreme
Court in Kloepfer v. Commission on Judicial Performance (1989) 49
Cal.3d 826, 865 noted that honesty is a minimum qualification that is expected
of every judge. The severity of Judge Murphy’s willful misconduct might well in
itself require his removal from the bench.
Judge
Murphy’s misconduct also continued over several years. His cavalier attitude to
sick leave manifested itself as early as 1996 when he would teach law school in
the evenings on days that he purported to be too ill to sit as a judge. In the
spring of 1999, he demonstrated a complete disregard for his judicial duties as
well as the impact his absences had on his colleagues and the court. In the
fall of 1999, he felt justified in taking intense college level science classes
in preparation for medical school while on sick leave. Even after he dropped
out of medical school, he did not return to the bench for three months and did
not file an application for a disability retirement until July 2000. Thus, the
evidence shows that over several years Judge Murphy persisted in a reprehensible
course of conduct.
The
record contains little evidence of contrition or willingness to reform. While
Judge Murphy admitted that his actions were prejudicial to the administration
of justice, he continued to insist on his subjective good faith based on his
disabilities. Other than his insistence that he is disabled, Judge Murphy
offered no evidence in mitigation. The masters, however, found that Judge
Murphy was not disabled and that he had proceeded in bad faith and the
commission adopts those findings. Judge Murphy has not filed any objections to
the masters’ report with the commission. Accordingly, there is nothing before
the commission that shows contrition or willingness to reform.
Finally, it should be noted that Judge Murphy was also charged with the
persistent failure or inability to perform his judicial duties. The masters
found that these charges had been proved and the commission adopts those
findings. Judge Murphy testified that his application for a disability
retirement had been denied, and he has not indicated that he has any intention
of returning to the bench or of renewing his disability application.
Accordingly, even if there were not overwhelming evidence of malingering and
other willful misconduct as alleged in Counts 3 and 4, and of conduct
prejudicial to the administration of justice as alleged in Count 2, the
commission would be compelled to remove Judge Murphy from the bench.
CONCLUSION
The commission orders that Judge Patrick B. Murphy of the Los Angeles County
Unified Superior Court be hereby removed from the bench for: (1) malingering by
falsely claiming to be ill as charged in Count Four; (2) willful misconduct and
prejudicial misconduct in failing to cooperate in the administration of court
business as charged in Count Three; (3) conduct prejudicial to the
administration of justice that brings the judicial office into disrepute in
giving nonjudicial activities precedence over, and allowing them to interfere
with, his judicial duties as charged in Count Two; and (4) persistent failure
to perform his judicial duties as charged in Count One. The special masters
found that the charges were sustained by clear and convincing evidence and the
commission adopts the masters’ findings of fact and conclusions of law. The
commission concludes that its responsibilities to protect the public, enforce
rigorous standards of judicial conduct and maintain public confidence in the
integrity of the judiciary dictate that Judge Murphy be removed from office.
This decision shall
constitute the order of removal of Judge Patrick B. Murphy.
Commission members Mr. Michael A. Kahn, Judge Rise Jones Pichon, Ms. Lara
Bergthold, Judge Madeline I. Flier, Mr. Marshall B. Grossman, Ms. Gayle
Gutierrez, Mrs. Crystal Lui, and Justice Vance W. Raye, voted in favor of all
the findings and conclusions expressed herein and in the removal of Judge
Patrick B. Murphy from judicial office. Commission members Mr. Mike Farrell and
Ms. Ramona Ripston did not participate in this proceeding. There is currently
one public member vacancy.
Dated: May 10,
2001
