Figure 1
CJP Is a Small Agency Headed by an 11-Person Commission
CJP is overseen by an eleven-member commission, composed of two attorneys, three judges, and six members of the public. The Governor appoints two attorneys and two public members, the Speaker of the Assembly appoints two public members, and the Senate Committee on Rules appoints two public members. The Supreme Court appoints the judge members. The office of legal advisor reports directly to the commission, while the director-chief counsel supervises the other nineteen staff who are in three divisions: office of the trial counsel, intake and investigations, and administrative support.
Figure 2
After Intake Attorneys Evaluate a Complaint, the Commission Votes on Whether to Open an Investigation
After receiving a complaint it sends the complainant a letter acknowledge it received the complaint. Then CJP intake attorneys conduct both a legal review—which determines whether the complaint alleges misconduct—and a factual review, which considers whether facts or evidence could exist to support the complaint. Intake attorneys can take some steps to assess complaints. They can interview the complainant or the complainant's attorney and review public records. If the complaint passes the review, intake attorneys recommend the commission open an investigation. If the complaint does not pass the legal or factual review, or both, intake attorneys recommend the commission close the complaint. The commission then votes whether to open an investigation or close the complaint. If the commission decides to close the complaint, CJP informs the complainant via a letter. Figure 3 includes details on how the process continues if the commission authorizes an investigation.
Figure 3
CJP's Staff Investigate Complaints and Make Disciplinary Recommendations to the Commission
After the commission votes to open an investigation, investigators assess whether clear and convincing evidence exists to prove that misconduct occurred. To do so, investigators can take a variety of steps, including interviewing witnesses, obtaining and reviewing relevant records, and conducting courtroom observation based on the circumstances of the alleged misconduct. CJP will also always contact the judge under investigation before issuing any discipline. If there is clear and convincing evidence of misconduct, investigators recommend a level of discipline, or that the case be evaluated by trial counsel for formal proceedings. If investigators find insufficient evidence of misconduct, they recommend the commission close the investigation without discipline or that it conduct further investigation. After the investigation, the commission determines whether clear and convincing evidence of misconduct exists. Then the commission votes to do one of the following: to conduct further investigation, close the investigation without discipline, send an advisory letter or notice of intended admonishment to the judge, or initiate formal proceedings.
Figure 4
Clear and Convincing Evidence Is a Relatively High Burden of Proof
Clear and convincing evidence—CJP's standard for discipline—means that it is highly probable that a fact is true. This standard, which is also used in certain civil cases, is below beyond a reasonable doubt, the standard used in criminal cases, which means that the evidence leaves the minds of the jurors with an abiding conviction that the charge is true. However, CJP's standard is higher than what is used in most civil cases, a preponderance of the evidence, which means that the existence of a fact is more probable than its nonexistence.
Figure 5
Formal Proceedings Provide Judges Many Opportunities to Respond to the Commission's Charges of Misconduct
The formal proceedings process begins with the commission issuing a notice of formal proceedings to the judge and announcing formal proceedings to the public. The responding judge can file an answer to the commission regarding the notice of formal proceedings. CJP's trial counsel, the judge, and the judge's attorney prepare for formal proceedings. As part of the discovery process before formal proceedings, CJP provides the judge information collected in its investigation. Then the special masters hold a public evidentiary hearing. After the evidentiary hearing, CJP's trial counsel and the judge's attorney both receive a transcript of the hearing and submit their proposed findings of fact and conclusions of law to the special masters. The special masters then submit a report of their findings and conclusions to the commission. Trial counsel and the judge's attorney file briefs with the commission. Both trial counsel and the judge, or the judge's attorney, have the opportunity can appear and make oral arguments before the commission. The commission then determines discipline. After the commission makes its decision, the judge can petition the Supreme Court for a review of the case. The Supreme Court may or may not grant the requested review.
Figure 6
The Commission Primarily Issues Private Discipline
Over the past five fiscal years, the commission issued public discipline much less frequently than private discipline. CJP issued private discipline between 29 and 47 times each year between fiscal year 2013-14 and 2017-18. In contrast, CJP only issued public discipline between three or four times in four of the five years we reviewed. However, in fiscal year 2015-16 CJP issued public discipline 12 times; private discipline was also higher that year.
Figure 7
CJP Closes Most Cases That It Investigates Without Issuing Discipline
From fiscal year 2013-14 to fiscal year 2017-18, CJP closed an average of 75 percent of its investigated complaints each year without discipline. The number of cases closed without discipline ranged between 90 and 147 cases per year, with the fewest number of cases closed in fiscal year 2014-15. Cases in which CJP issued discipline ranged between 32 and 59 annually. CJP issued the most discipline in fiscal year 2015-16.
Figure 8
CJP Did Not Thoroughly Investigate About One-Third of the Complaints We Reviewed
We reviewed 30 complaints and determined that CJP did not adequately investigate eleven of these complaints. The complaints not thoroughly investigated included allegations such as judges yelling at litigants, having a relationship with a subordinate, improperly barring entry to courtroom, delegating their judicial role to clerks, threatening to assault litigants, and improperly delaying a case.
Figure 9
CJP Missed Key Steps in Its Investigation of a Judge's Alleged Misconduct
In one case we reviewed, a litigant alleged that the judge did not let his friends accompany him into the courtroom. By law, these proceedings must be open to the public. CJP did take some investigative steps, including speaking with the complainant, interviewing one of the friends who had been denied entry, and asking the judge about the matter. However, it missed other key steps, such as interviewing the court staff member who barred entry into the courtroom, determining whether video evidence was available from security cameras, or observing similar proceedings before the judge. CJP did send an investigator to attempt this step, but only after it alerted the judge it was conducting an investigation. Moreover, no similar proceedings were before the judge on the days that the investigator visited the court.
Figure 10
Despite Numerous Complaints About a Judge's Actions, CJP Did Not Detect a Pattern of Misconduct
CJP received six complaints about a judge's on-the-bench misconduct over three years, all but one of which it closed at intake with no further action. The commission did investigate one complaint received about on-the-bench misconduct. The judge admitted fault and promised not to allow the conduct to recur. The commission closed the case without discipline. In the fourth year, CJP opened a new investigation into the seventh complaint, and later expanded the investigation to include another complaint received the following year. Following the investigation of these complaints, the judge agreed in a confidential settlement to resign and to never seek judicial office again.
Figure 11
CJP's Disciplinary Authority Has Grown Over Time Because of Constitutional Amendments
From 1960 to the present, the voters have incrementally transferred disciplinary authority from the Supreme Court to CJP. From 1960-1976, CJP was limited to recommending discipline to the Supreme Court, which could retire or remove a judge. In 1966, a constitutional amendment expanded the Supreme Court's authority to allow it to also censure judges. CJP's disciplinary authority grew further in 1976 with the passage of Proposition 7, which gave CJP the power to privately admonish judges. In 1994, voters transferred all of the Supreme Court's disciplinary authority to CJP through Proposition 190. As a result, CJP now has the authority to retire, remove, censure, or admonish (either privately or publicly) a judge. CJP can also disqualify or suspend a judge.
Figure 12
Under the Bicameral Structure, the Disciplinary Body Is Not Privy to Unproven Allegations
In its current unitary structure, if CJP opened an investigation into allegations of bias, sexual harassment, and demeanor, but was only able to prove the demeanor allegations, CJP commissioners would still be aware of the bias and sexual harassment allegations because they are involved in the investigative process. Under a bicameral structure, which we recommend, there would be an investigative body and a disciplinary body. Thus after CJP proved the demeanor allegations, the investigative body would forward those allegations to the disciplinary body. Therefore the disciplinary body would only be aware of the proven allegation.
Figure 13
CJP Relies on Special Masters to Make Rulings on the Admissibility of Evidence and to Determine the Credibility of Witnesses
In CJP's process, the admissibility of evidence including the credibility of witnesses is determined by special masters, not the commission. CJP's trial counsel presents the special masters with evidence to supports the charges it set forth in the notice of formal proceedings, and submits a brief with proposed findings and conclusions. The judge's attorney then presents evidence to refute the charges set forth in the notice of formal proceedings, and submits a brief with their proposed findings and conclusions. The special masters rule on the admissibility of evidence, determine the credibility of witnesses, including the judge. They then prepare a report on their findings and conclusions to the commission, which does not recommend discipline. The commission then considers the special masters' report, giving special weight to the special masters' findings. The commission hears oral arguments from trial counsel and the judge or the judge's attorney, and then votes on discipline. Finally, the commission issues a decision and order which includes its findings, conclusions, and determination of discipline.
Figure 14
Reforming CJP's Structure Will Require a Constitutional Amendment
We recommend the Legislature propose and submit to voters an amendment to the California Constitution to accomplish three major reforms. First, this amendment would reform the commission into a bicameral structure, with a public majority in both investigative body and disciplinary bodies. The investigative body would be responsible for receiving complaints and determining which to investigate, deciding to close investigations without discipline, and submitting investigation reports to the disciplinary body if it proves misconduct. The disciplinary body would then review the investigation report and issue the judge a notice of intended discipline, hear formal proceedings—if necessary—and issue discipline, including corrective actions. Second, the amendment should require the disciplinary body hear its own formal proceedings. Third, the amendment should authorize the commission to use corrective actions.
Figure 15
In Fiscal Year 2017–18, CJP Spent Only 61 Percent of Its $5.2 Million Budget on Its Core Functions
In fiscal year 2017-18, CJP spent only 61 percent of its $5.2 million budget on its core functions: intake, investigations, and formal proceedings, which include expenditures for its executives and commissioners. The remaining funds were spent on support staff, its lease, IT systems and services, operations and administration, and other expenses.