2007 PRIVATE DISCIPLINE SUMMARIES

PRIVATE ADMONISHMENTS

      Private admonishments and advisory letters are summarized in this section. In order to maintain confidentiality, it has been necessary to omit certain details and obscure others, making these summaries less informative than they otherwise would be. Because these examples are intended in part to educate judges and the public, and to assist judges in avoiding inappropriate conduct, the Commission believes it is better to describe them in abbreviated form than to omit them altogether.

            In 2007, the Commission imposed nine private admonishments. 

          1.  A judge engaged in a practice of reading police reports prior to arraignments in violation of applicable law.  The judge engaged in ex parte communications in two cases and displayed inappropriate demeanor, including using profanity in expressing frustration during a bench conference when a case did not settle.  In a separate case, the judge exhibited a lack of impartiality towards a pro per criminal defendant and also displayed inappropriate demeanor, including telling the defendant at the end of the proceeding to “Shut up and get out of here, please.”   

            2.  A judge was inconsistent in making disclosures and in disqualification in cases involving the judge’s former law partner who was also a close friend.  The judge also made inappropriate remarks with sexual overtones to court staff.

            3.  A judge delayed in issuing decisions in seven cases over a period of several months.  The judge executed three false salary affidavits during this period but stopped executing them when the judge became aware of delays in submitted matters.  The judge also failed to disclose information about an out-of-court dispute with a party who appeared regularly before the judge. 

            4.  A judge made remarks to jurors after trial that constituted improper comment on a pending case.  The judge failed to take appropriate corrective action when the judge believed an attorney had engaged in misconduct and also failed to be patient, dignified and courteous in remarks about counsel in the proceeding.

             5.  A judge incarcerated courtroom spectators without following the procedures necessary for the proper imposition of contempt.

             6.  In admonishing the defendant in a misdemeanor case about the consequences of not accepting a plea bargain, the judge told the defendant that the judge would immediately remand the defendant into custody to serve the maximum sentence if convicted at trial.  After acknowledging the impropriety of the remarks, the judge made similar remarks in two other cases.

             7.  A judge’s comments regarding a pending proceeding violated the prohibition on judges making public comments regarding a pending proceeding or non-public comments that might interfere with a fair trial or hearing.  In other matters, the judge failed to disclose the judge’s relationship with an attorney and law firm appearing before the judge.  The judge also failed to comply with campaign reporting requirements.

             8.  A judge made offensive remarks to counsel and court personnel relating to litigants appearing before the judge.

             9.  A judge’s conduct in public, some of which was alcohol related, demeaned the judicial office.  The judge also abused the prestige of judicial office on multiple occasions.  The private admonishment was conditioned upon the judge’s retirement and agreement not to seek judicial office or assignments.

Advisory Letters

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 2007, the Commission issued 20 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.  On three occasions, a judge was loud and demeaning in dealing with court personnel.

 2.  A judge displayed improper demeanor in two cases, making unduly harsh remarks.  Some of the remarks concerned a litigant, others involved a witness, and others were directed to an attorney in a settlement conference.  The advisory letter was issued after a six-month period of monitoring revealed no additional incidents of poor demeanor by the judge.

 3.  A judge made sarcastic and demeaning remarks to a pro per litigant in family court, including mocking the litigant’s use of a legal term.

4.  A judge used profanity in a sidebar conference with counsel while the jury and others were present in the courtroom.

 5.  A judge made numerous sarcastic and demeaning remarks to both counsel in the presence of the jury in a criminal case.

 6.  A judge made a vulgar remark to a pro per litigant in a matter.

 Delay, Dereliction of Duty

            Judges are required to perform the duties of judicial office diligently as well as impartially.  (Canon 3.)  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.

 7.  A judge delayed ruling in a family law matter for almost a year and a half.  There were mitigating circumstances.

 Disclosure and Disqualification

            Judges must disqualify themselves under certain circumstances and trial judges must make appropriate disclosures to those appearing before them.  (Canon 3E.)

 8.  A judge observed a defendant committing a misdemeanor.  The following day, the judge initiated proceedings – over which the judge improperly presided – to revoke the defendant’s own-recognizance release based on the conduct the judge had observed. 

 9.  A judge presided over a litigant’s motion to disqualify another judge without the litigant’s agreement, in violation of Code of Civil Procedure section 170.3(c)(5).

 Bias

            Judges are required to discharge both judicial duties and administrative responsibilities without bias or prejudice.  (Canons 3B(5), 3C(1).)

10.  A judge made remarks suggesting bias against counsel that appeared to be based on off-bench comments made by another judicial officer about the attorney.  The judge made additional remarks that were sarcastic and demeaning.

11.  In a dependency matter, a judge made remarks demonstrating bias and remarks that failed to demonstrate patience, dignity and courtesy.

12.  A judge’s remarks in a public setting appeared to reflect negative racial and ethnic stereotypes.

Ex Parte Communications

Unless expressly allowed by law or expressly agreed to by the opposing party, ex parte communications are improper.  (Canon 3B(7).)

13.  A judge participated in a substantive ex parte communication by email with a district attorney about a pending case.

 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.)

14.  A judge used official court stationery to advance a personal business purpose.

15.  A judge circulated an email over the court’s computer system that contained offensive material.  Recipients of the email included court personnel.

16.  A judge sent inappropriate emails, apparently intended as humor, over the court’s computer system.  Recipients of the emails included court personnel.

17.  A judge used stationery bearing the judge’s official title for correspondence related to a personal business dispute.

More Than One Type of Misconduct

             Some cases involved more than one type of misconduct.

18.  A judge was discourteous to counsel in three proceedings; in one of the cases, the judge also demonstrated a lack of impartiality.  In a fourth proceeding, the judge disregarded a misdemeanant’s right to bail.

 19.  During pretrial discussions with counsel, a judge angrily slammed the judge’s arms and fists down on the bench; one attorney then left the courtroom.  When the attorney returned, the judge had the bailiff remove the attorney without sufficient cause.

 20.  A judge required an attorney to come into chambers after a preliminary hearing to listen to an explanation of the judge’s decision and made comments, in an emotional and argumentative manner, that were intimidating.  In a separate matter, the judge made discourteous remarks to one counsel that tended to improperly personalize the matter before the court.

 

 

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