COMMITMENT • INTEGRITY • LEADERSHIP	View full PDF report
Commission on Judicial Performance Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist Report Number: 2016-137

Introduction

Background

Established in 1960 by an amendment to the California Constitution, the Commission on Judicial Performance (CJP) is responsible for investigating complaints about judicial misconduct and for disciplining judges who engage in misconduct.²  CJP may also retire a judge for a disability that seriously interferes with the performance of the judge's duties. Its mission is to protect the public, enforce rigorous standards of judicial conduct, and maintain public confidence in the integrity and independence of the judicial system. CJP has jurisdiction over all judges of California's superior courts, the justices of the courts of appeal, and the justices of the Supreme Court of California (Supreme Court), and it can also impose certain discipline against former judges. CJP also shares jurisdiction with courts over subordinate judicial officers, such as court commissioners who may perform certain judicial duties. The focus of this audit is complaints against judges and former judges regarding judicial misconduct and how CJP handles those complaints. As Figure 1 shows, CJP consists of an 11-person commission and 22 staff members. Its fiscal year 2018–19 annual budget is $5.2 million and its primary funding source is the State's General Fund. For fiscal years 2013–14 through 2017–18, CJP had an average balance of $70,000 in unspent funding at the end of each fiscal year, ranging from just more than $9,000 in fiscal year 2016–17 to nearly $165,000 in fiscal year 2013–14. CJP is required to return these unspent funds to the State's General Fund.

CJP's Process for Reviewing Complaints

Judicial misconduct usually involves conduct that conflicts with the standards in the California Code of Judicial Ethics (ethics code). The ethics code sets high standards for conduct both on-the-bench and outside of the courtroom for judges and candidates for judicial office. For example, the ethics code addresses proper demeanor, the responsibility to diligently and impartially perform the duties of a judge, and the avoidance of activities that could undermine public confidence in the judiciary. The text box provides examples of types of judicial misconduct.

CJP cannot change a decision made by a judicial officer. When a judge issues a ruling that constitutes a legal mistake, also known as legal error, and that error changed the outcome of a case, only the appropriate reviewing court—rather than CJP—can change the ruling. Because a legal error by itself is not evidence of judicial misconduct, CJP will pursue complaints involving legal error only if complainants also allege some form of misconduct, such as bias or intentional disregard of the law.

Figure 1
CJP Is a Small Agency Headed by an 11-Person Commission

CJP's processes for addressing complaints and administering discipline are governed by its rules, which it is required to formally review every two years. CJP also has policy declarations—which detail the commission's policies, procedures, and practices—that it reviews periodically. CJP has internal manuals that further guide the day-to‑day actions of its staff. Figure 2 shows the first stage of CJP's complaint review, which it refers to as intake. During intake, an attorney evaluates a complaint to determine whether it alleges judicial misconduct—which is called legal review—and if facts or evidence could exist to support the complaint—which is called factual review. The intake attorney recommends that the commission open an investigation if a complaint passes both the legal and factual reviews.³  If the complaint does not pass either one of these reviews, the intake attorney recommends that the commission close the complaint without investigation. After the commission considers the intake attorney's recommendation, it votes either to close the complaint without an investigation or to authorize an investigation.

Figure 2
After Intake Attorneys Evaluate a Complaint, the Commission Votes on Whether to Open an Investigation

Source: Analysis of CJP's rules, its internal policies, and interviews with intake attorneys.

When the commission authorizes an investigation, CJP's investigating attorneys (investigators) further explore the alleged misconduct and report the results to the commission, as we outline in Figure 3. First, CJP investigators determine whether clear and convincing evidence exists that judicial misconduct occurred. Clear and convincing means that the evidence supports a conclusion that it is highly probable that the allegation is true. As Figure 4 shows, clear and convincing is a relatively high standard of evidence. If the investigators conclude that no clear and convincing evidence of judicial misconduct exists, they recommend that the commission close the investigation. However, if the investigators find clear and convincing evidence of misconduct, they recommend a level of discipline, as we discuss on page 10.

Figure 3
CJP's Staff Investigate Complaints and Make Disciplinary Recommendations to the Commission

CJP's Process for Administering Discipline

If the commission determines clear and convincing evidence of misconduct exists, it must then decide on the level of appropriate discipline for that proven misconduct. The text box indicates the types of private and public discipline that the commission can vote to impose, all of which it communicates to the judge in writing. CJP posts records of public discipline to its website. In contrast, records of private discipline generally remain confidential, except, for example, following a formal request by an appointing authority such as the governor of any state or the President of the United States. CJP's five disciplinary options range from issuing advisory letters as the least severe discipline for relatively minor misconduct to removing judges from office for the most serious violations of the ethics code. The commission can consider a variety of factors beyond the severity of the proven misconduct when it decides which type of discipline to impose. These factors include a judge's length of service as a judicial officer, disciplinary history, and degree of appreciation of the seriousness of the misconduct.

Figure 4
Clear and Convincing Evidence Is a Relatively High Burden of Proof

Source: California statutes, case law, and Judicial Council of California's criminal and civil jury instructions.

In a small number of cases, the commission will vote to begin formal proceedings before issuing discipline. The formal proceedings process involves a public trial—called an evidentiary hearing—in which CJP's trial counsel and the judge's attorney present evidence in support of or against the charges of misconduct. The commission initiates the formal proceedings process either because of the seriousness of the misconduct or because a judge demands it. As Figure 5 shows, a key portion of this process is the evidentiary hearing. This hearing is overseen by a panel of three special masters that the Supreme Court appoints from a pool of experienced judges who have received training to prepare them for CJP's formal proceedings. The special masters apply the rules of evidence to determine what evidence is admissible in the proceedings and to ensure the proceedings adhere to the California Evidence Code. Their role is equivalent to the role of judges in other types of proceedings, such as criminal trials. After the evidentiary hearing, the commission receives a report from the special masters and briefs from trial counsel and the judge's attorney. The special masters' report contains their findings of fact (findings) and conclusions of law (conclusions) and the briefs from trial counsel and the judge's attorney may include objections to the special masters' report.

Figure 5
Formal Proceedings Provide Judges Many Opportunities to Respond to the Commission's Charges of Misconduct

Source: Analysis of the California Constitution and CJP's rules.

Most of the discipline that the commission issues is private, as we show in Figure 6. CJP designed its private discipline options in part to correct problems early and in the hope that judges will not repeat or escalate the misconduct. Between fiscal years 2013–14 and 2017–18, the commission generally issued public discipline for judges who had previously received private discipline or who were first-time offenders but whose misconduct was very serious, such as violating the law. During the last five years, all but two of the judges who received public discipline had been the subjects of prior complaints, and nine had been the subjects of prior complaints that CJP closed without discipline. Further, 15 of the 26 judges—or 58 percent—who received public discipline had previously received private discipline. Three of the 26 judges received public discipline more than once.

Figure 6
The Commission Primarily Issues Private Discipline

Source: Analysis of data from CJP's case management system.

Public Scrutiny of CJP

Members of the general public have at times over the last several decades expressed distrust of CJP, likely in part because CJP infrequently disciplines judges publicly and in part because of a perception that it operates without accountability. When Proposition 10 established CJP's predecessor in 1960, a state senator who supported the ballot initiative stated that although impeachment, recall, and defeat at the polls had succeeded in removing unethical judges, they had done so only in the rare instances in which judges' conduct had been "so reprehensible as to thoroughly arouse and excite public opinion." Nonetheless, by 1988 several news outlets described CJP as operating in secret because of its lack of transparency over the preceding 27 years.

In response to these concerns, the voters passed Proposition 92 in 1988, which imposed term limits on commissioners and allowed judges the opportunity to request formal proceedings be public. Only six years later, in 1994, news outlets again criticized CJP for being lenient with punishment and for a lack of transparency. That year, in an effort to increase the public's role in judicial discipline, California voters approved Proposition 190, which changed the commission's composition so that the majority are members of the public. More recently, judges and members of the public have again raised concerns about the judicial disciplinary process and CJP's transparency. Those concerns were the genesis of this audit, which is the first external review of the operations of the CJP in its nearly 60-year history.

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Footnotes

² CJP was formerly known as the Commission on Judicial Qualifications. Go back to text

³ CJP conducts two types of investigations: staff inquiries and preliminary investigations. CJP considers staff inquiries to be less involved, and they can result in only one type of discipline: an advisory letter. However, the commission can vote to elevate a case that began as a staff inquiry to a preliminary investigation. For simplicity, in our report, we refer to both staff inquiries and preliminary investigations as investigations. Go back to text

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