Advisory
Letters
The Commission advises caution or expresses disapproval of a
judge’s conduct in an advisory letter. The
Commission has issued advisory letters in a variety of situations. As noted by the California Supreme Court in Oberholzer
v. Commission on Judicial Performance (1999) 20 Cal.4th 371: “Advisory letters may range from a mild
suggestion to a severe rebuke.” (Id. at
p. 393.) An advisory letter may be issued when
the impropriety is isolated or relatively minor, or when the impropriety is more serious
but the judge has demonstrated an understanding of the problem and has taken steps to
improve. An advisory letter is especially
useful when there is an appearance of impropriety. An
advisory letter might be appropriate when there is actionable misconduct offset by
substantial mitigation.
In 2006, the Commission issued 16 advisory letters.
Demeanor and Decorum
A judge “shall require order and
decorum in proceedings before the judge” and “shall be patient, dignified, and
courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in
an official capacity….” (Canon 3B(3), (4).)
1.
A judge used profanity and vulgar
language in two cases. The judge expressed
contrition and gave assurances that the conduct would not be
repeated.
2.
At sentencing, a judge made
gratuitous remarks disparaging the criminal justice system in other jurisdictions. The remarks were likely to
undermine public
confidence in the judiciary, prosecutors and law enforcement.
3.
In an angry outburst during court
proceedings, a judge expressed frustration with the judicial system and made rude and
undignified remarks to a
pro per family law litigant.
4.
A judge chastised the attorneys in
the presence of the jury and threatened to declare a mistrial over momentary confusion
about the availability of
a witness.
5.
During trial, a judge made
numerous sarcastic and demeaning remarks to counsel in the presence of the jury.
Delay, Dereliction of Duty
Judges are required to perform the duties of judicial office
diligently as well as impartially. (Canon 3.) The Commission issued advisory letters for failure
to decide cases timely. The delay in these
cases was over 90 days. Under California
Constitution article VI, section 19, a judge may not receive the judge’s salary while
any submitted matters remain pending and undecided for more than 90 days.
6.
A judge contributed to excessive
delay in a habeas matter by ordering 16 extensions of time for filing the return, over a
three-year period. Extensions were requested
informally by petitioner’s assigned counsel; the judge’s orders contained no
statement of good cause as required. The judge
also failed to take action regarding petitioner’s claim that petitioner had been
abandoned by counsel.
7.
A judge failed to issue a decision
on a custody issue in a family law case for 112 days after telling the parties a decision
would be issued within 10 days.
8.
A judge did not decide a motion
for child support for almost seven and one half months, and did not decide a request for
attorneys’ fees in the same case for almost a year.
Disclosure and Disqualification
Judges must disqualify themselves under certain circumstances and trial judges must
make appropriate disclosures to those appearing before them.
(Canon 3E.)
9.
A judge’s disclosure of
information relevant to the question of disqualification was not made on the record, as
required by canon 3E(1) of the Code of Judicial Ethics.
10.
A supervising judge signed an order in a case
to which the judge was not assigned, at the request of a judicial officer, knowing that
the judicial officer was recused from the case.
Ex Parte Communications
Unless expressly allowed by law or
expressly agreed to by the opposing party, ex parte communications are improper. (Canon 3B(7).)
11.
A judge engaged in an improper ex parte
communication about a trial over which the judge was presiding.
12.
A judge received information ex parte from one
party’s attorney and, without notice to the other parties, took action in the case
based on that information.
Failure to Ensure Rights
Society’s commitment to
institutional justice requires that judges be solicitous of the rights of persons who come
before the court. (See Geiler v. Commission
on Judicial Qualifications (1973) 10 Cal.3d 270, 286.)
13.
A judge questioned defense counsel in a
criminal matter about the attorney’s qualifications and competence. The questioning, some of which was demeaning, was
done in open court, in front of the defendant and over the objection of defense counsel.
14.
At arraignment, a judge waived a
defendant’s right to a speedy trial. The
judge gave assurances that the conduct would not be repeated.
Off-Bench Improprieties
A judge is required to respect and comply with the law and to act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary. The prohibition against behaving with impropriety
or the appearance of impropriety applies to both the professional and personal conduct of
a judge. (Canon 2A and Commentary.)
15.
A judge’s off-bench conduct might have
created the impression that the judge had assumed a law enforcement role, and cast doubt
on the judge’s capacity to act impartially. The
judge expressed contrition.
On-Bench Abuse of Authority
Acts in excess of judicial authority may
constitute misconduct, particularly where a judge deliberately disregards the requirements
of fairness and due process. (See Gonzalez
v. Commission on Judicial Performance (1983) 33 Cal.3d 359, 371, 374; Cannon
v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 694.)
16.
On multiple occasions, a judge spoke directly
to defendants in Spanish—often on matters of substance and even when interpreters
were present—in violation of Civil Code section 185(a), which requires all judicial
proceedings to be conducted in English.
