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2007 PUBLIC DISCIPLINE Public DisciplineFollowing is a summary of public discipline imposed in
2007. The full text of these decisions is available from the Commission office. Removal from office by the Commission In December of 2006, the Commission issued an order of removal of Judge Diana R. Hall of the Santa Barbara County Superior Court. The time for Judge Hall to file a petition for review in the California Supreme Court had not expired at the end of 2006, and therefore, this matter was not included in the case disposition statistics for 2006. It is included in the 2007 statistics. In April of 2007, the Commission issued an order of removal of Judge José A. Velasquez of the Monterey County Superior Court. Judge Velasquez subsequently filed a petition for review in the California Supreme Court, which was denied in October 2007. The matter is included in the 2007 case disposition statistics. In October of 2007, the Commission issued an order of removal of Judge Robert G. Spitzer of the Riverside County Superior Court. In December 2007, Judge Spitzer filed a petition for review in the California Supreme Court. Because the matter was not concluded as of the end of 2007, it is not included in the 2007 case disposition statistics.
Order of Removal of Judge Diana R. Hall, Judge Diana R. Hall of the Santa Barbara County Superior Court was ordered removed from office by the Commission on December 12, 2006, for willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The Commission’s action concluded formal proceedings, during which there was a hearing before special masters and an appearance before the Commission. The Commission found that Judge Hall drove a car when impaired by alcohol and with a blood alcohol level of .18, more than twice the legal limit, resulting in convictions by a jury of driving under the influence and driving with a blood alcohol level over .08. The Commission adopted the special masters’ conclusions that the judge’s conduct was contrary to canons 1 and 2A, and that it reflected “a complete lack of concern for the safety of others” as well as “an inability to control her impulses and poor judgment, thereby seriously injuring the integrity of the judiciary in the eyes of the public.” The Commission also adopted the special masters’ conclusion that the judge engaged in prejudicial misconduct, since her conduct would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to the public esteem for the judicial office. The Commission also found that during her campaign for reelection, Judge Hall illegally commingled campaign and personal funds, and filed four sworn false campaign statements. The Commission found that the judge accepted $20,000 for her campaign from a woman with whom she lived in a romantic relationship; the judge deposited these funds to her personal checking account and then wrote a check for $25,000 to her campaign. Subsequently, the judge signed under penalty of perjury four campaign statements that did not include the $20,000 she had received, either as a loan or as a contribution; the statements falsely listed the judge as the sole source of the $25,000 deposited to her campaign account. The Commission found that the judge intentionally omitted the source of the $20,000 from her campaign statements because she believed disclosure of her same-sex relationship would have made her job difficult in the area in which she was running for reelection. The Commission noted that although the judge had admitted in prior testimony at her DUI trial that this was the reason she omitted the $20,000 from her sworn statements, she testified at the hearing before the masters that she “never really thought about” the possibility that listing the $20,000 would result in disclosure of the relationship, and also testified that she considered the $20,000 to be jointly earned and therefore not subject to disclosure. The Commission and the masters rejected these latter claims, finding that the judge intentionally omitted the source of the $20,000 from her statements to avoid disclosure of her relationship. The Commission concluded that Judge Hall violated various provisions of the Political Reform Act, rejecting her claim that she did not willfully violate the law because she was ignorant of its requirements at the time of the violations. The Commission concluded that by commingling funds, intentionally concealing the source of nearly half of her campaign contributions, and signing four declarations under penalty of perjury knowing they were false, the judge violated canons 1, 2A and 5, and engaged in prejudicial misconduct. The Commission concluded that Judge Hall’s campaign misconduct was unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity, noting that “in this context, bad faith means a culpable mental state beyond mere negligence and consisting of either knowing or not caring that the conduct being undertaken is unjudicial and prejudicial to public esteem.” (Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1093.) Finally the Commission found that Judge Hall questioned a prosecutor about why he was filing a peremptory challenge against her, and rejected her claim that she did not do so. The Commission noted that the judge admitted that she knew she could not question the prosecutor about the challenge. The Commission concluded that the judge violated canons 1 and 2A by her questioning and engaged in willful misconduct, noting that the judge’s conduct was unjudicial, that she was acting in a judicial capacity, and that she committed an act she knew was beyond her judicial power, thus acting in bad faith. (See, Broadman, supra, 18 Cal.4th at p. 1091.) The Commission determined that the special masters properly admitted into evidence a private admonishment that was in effect before the conclusion of the Commission proceeding, as allowed by Commission rule 125(b), and noted that the rule provides that prior discipline is admissible “to determine what action should be taken regarding discipline.” The Commission rejected the judge’s arguments that admitting the admonishment improperly made private discipline public, and that the Commission should only consider discipline for conduct predating the conduct considered in the formal proceedings. The Commission pointed out that Judge Hall had committed the misconduct underlying the admonishment when she knew she was under investigation by the Commission, and had thereby “shown her inability to control her behavior at a time one would expect her to be on her very best behavior.” The Commission then discussed the facts underlying the private admonishment. In that matter, Judge Hall insisted on being seated in the main courtroom, rather than an overflow courtroom, during arraignment and argument in a high-profile case, so that the prosecutor could see her “no worse off” than before he had prosecuted her for the DUI and other charges. She disobeyed the order of the judge presiding over the case not to enter the main courtroom, and refused to speak to the presiding judge by telephone. In considering the appropriate sanction, the Commission stated that the case required it to “decide whether a judge who engages in materially deceitful and lawless conduct that undermines the electoral process, and thereafter attempts to explain it away with specious arguments and misleading testimony should continue in judicial office.” The Commission pointed out that honesty is a minimum qualification for every judge, and cited past cases from California and other states in which judges were removed primarily or specifically for dishonesty, including deceptive campaign conduct and subsequent dissembling before the Commission. The Commission considered in mitigation the testimony of several witnesses who described Judge Hall as a hardworking, conscientious and well prepared jurist. Nonetheless, the Commission concluded that “the judge’s election fraud overwhelms other considerations and compels [its] removal decision.” The Commission stated that the judge engaged in deceit and misrepresentations to keep her position as a judge; dissembled before the masters and the Commission; demonstrated an extreme lack of judgment when she drove while drunk; questioned an attorney’s disqualification of her when she knew this was improper; and showed “alarming disrespect” for the authority of the judge presiding over a high profile case, the presiding judge, and other court personnel when she insisted on taking a seat in the courtroom for proceedings in the case. The Commission noted that the judge’s actions showed “the serious degree to which she is unable to control her behavior.” Order of
Removal of
Judge José A. Velasquez, Judge José A. Velasquez of the Monterey County Superior Court was ordered removed from office by the Commission on April 25, 2007, for willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The Commission’s action concluded formal proceedings, during which there was a hearing before special masters and an appearance before the Commission. The Commission considered 46 instances of misconduct in criminal cases before the judge. These instances of misconduct were grouped into seven categories. The Commission found that Judge Velasquez denied due process to defendants seeking probation modification. In each of eight cases, a defendant who appeared before the judge to request a modification of the terms of probation was, by the end of the proceeding, found to be in violation of probation and remanded to serve a jail sentence in addition to the sentence imposed on the original charge. In each case, the judge failed to give the defendant notice that a probation violation hearing would be taking place or the basis of the alleged violation, and failed to advise the defendant of his constitutional rights, including the right to counsel and a formal evidentiary hearing. In addition, in various cases the judge independently investigated facts, refused to consider documents the defendant had brought to court, engaged in a contest with the defendant to determine who was lying, and increased sentences out of impatience and pique when a defendant attempted to explain his failure to comply with a court order or questioned a sentence. The Commission concluded that the judge’s actions went well beyond mere legal error, reflecting a disregard of the defendants’ fundamental right to due process; the Commission adopted the special masters’ conclusion that Judge Velasquez “engaged in intentional conduct that diminished or virtually eliminated those rights.” The Commission also found that the judge acted for a purpose other than the faithful discharge of judicial duties by becoming embroiled, thereby surrendering his role as an impartial jurist. The Commission and the masters found that the evidence was insufficient to establish that other judges in Monterey County either did or did not engage in the same practices in probation modification matters, and rejected Judge Velasquez’s claim that he was acting on the good faith belief that he was following the practices of other judges in the county. The Commission noted that Judge Velasquez had an obligation to ensure the rights of defendants irrespective of the practices of other judges. The Commission concluded that Judge Velasquez engaged in willful misconduct, which is defined as unjudicial conduct a judge acting in a judicial capacity commits in bad faith. The Commission determined that the judge, acting in a judicial capacity, engaged in conduct that was unjudicial in that it violated canons 1, 2A, 3B(2), 3B(4) and 3B(8). The Commission determined that the judge acted in bad faith by acting beyond his lawful authority, either knowingly or with conscious disregard for the limits of his authority. In addition, the Commission determined that the judge displayed bad faith by acting out of pique, irritation or impatience. In six matters, the Commission determined that Judge Velasquez threatened to increase or did increase sentences when defendants questioned the sentences or otherwise commented at sentencing. The Commission concluded that this was willful misconduct. By infringing upon the defendants’ right to be heard and becoming embroiled, Judge Velasquez violated canons 1, 2A, 3B(4), 3B(7) and 3B(8), thus engaging in unjudicial conduct while acting in a judicial capacity. In addition, the judge acted in bad faith by either knowingly violating or consciously disregarding his obligation to assure those in his courtroom their right to be heard, and by acting for the “corrupt purpose” of venting his anger. The Commission found that in five additional matters, Judge Velasquez asked defendants who were being sentenced on a misdemeanor charge of exhibition of speed if it “felt good” to “peel out.” Based on his own experience as a young man, Judge Velasquez concluded that defendants who answered “yes” were telling the truth and those who answered “no” were lying and therefore deserving of harsher punishment; he accused two defendants who answered “no” of lying. The Commission concluded that Judge Velasquez made prejudgments regarding the defendants’ credibility based on his own experiences as a young man, and that he violated canons 1, 2A, 3B(4), and 3B(8) by becoming embroiled, unreasonably accusing some defendants of lying, and acting in a way that manifested prejudgment. The Commission concluded that the judge engaged in prejudicial misconduct in these matters. In seven other cases, Judge Velasquez gave defendants the choice of a diversion program or jail time, without advising them of their right to plead not guilty; in some cases, he suggested that the consequence of failure to successfully complete diversion would be immediate incarceration. The Commission concluded that the judge violated canons 1, 2A and 3B(7) and engaged in prejudicial misconduct. The Commission found that in seven other cases, Judge Velasquez issued bench warrants for defendants in misdemeanor cases in which the defendants had authorized counsel to appear for them pursuant to Penal Code section 977, but neither the attorney nor the defendant had appeared. In some of these cases, the judge refused to recall the bench warrants after the attorneys asked that they be recalled. In one instance, after Judge Velasquez issued bench warrants for two defendants and refused to recall them, the defendants’ attorney disqualified the judge and sent letters of complaint to the presiding judge; when the attorney later appeared before Judge Velasquez on an unrelated matter, the judge demanded that the attorney provide him copies of the letters. The Commission concluded that Judge Velasquez engaged in willful misconduct by issuing bench warrants in matters in which he knew that defendants were not required to appear. The Commission found that the judge “manifested a callous indifference to the bounds of his authority” by issuing these warrants, and that he did so “for the improper purpose of teaching the defendants’ attorneys a lesson.” The Commission concluded that the judge’s conduct in issuing the warrants violated canons 1, 2, 3B(2), 3B(4), 3B(7) and 3B(8), and that he acted in bad faith; therefore, his issuance of the warrants was willful misconduct. The Commission also concluded that Judge Velasquez engaged in willful misconduct when he ordered the attorney to produce correspondence concerning a case in which he had been disqualified. The Commission found that the judge knew that he had been disqualified, and he conceded that he was not aware of any authority permitting him to order the attorney to produce the letters. The Commission found that in addition to exceeding his authority, the judge acted for an improper purpose, i.e., to pursue his personal interest in proving that the attorney had lied to the presiding judge. The Commission concluded that the judge acted in bad faith. The Commission next determined that Judge Velasquez made eleven “joking” remarks to defendants and to the friend of a defendant about incarceration; the Commission found these remarks offensive and inappropriate, stating, “We fail to see how suggesting that a person is going to be incarcerated can ever be considered appropriate humor in the courtroom.” The Commission found that the remarks violated canons 1, 2A, and 3B(4), and constituted prejudicial misconduct. The Commission also found that Judge Velasquez engaged in prejudicial misconduct when he made two disparaging remarks concerning attorneys in open court. The Commission noted that Judge Velasquez had been publicly censured in 1997 for conduct that included essentially the same conduct. In determining the appropriate discipline, the Commission noted that Judge Velasquez had engaged in 21 instances of willful misconduct and 25 instances of prejudicial misconduct, “a plethora of misconduct by any standard,” that was wide ranging in nature and impact. The Commission pointed out that Judge Velasquez had been publicly censured in 1997 for varied misconduct, and that its decision not to remove him at that time was based in part on the fact that the judge had refrained from further misconduct for about a year. The Commission stated that given the judge’s disciplinary history and the misconduct before it, a second censure was “clearly insufficient,” and would be contrary to the Commission’s “established policy and practice of escalating discipline for successive misconduct.” In addition, the Commission found that during the proceedings, Judge Velasquez displayed little appreciation of his misconduct, and that his “failure to grasp the substance or seriousness of his misconduct” left it with no confidence in his capacity to reform. The Commission further noted that Judge Velasquez was less than candid in his testimony before the special masters regarding one of the charges. Concerning the likelihood of future misconduct, the Commission found that the judge’s repetition of misconduct after being publicly censured, as well as his unwillingness or inability to appreciate the principles underlying his current misconduct, led it to the conclusion that there was “a very strong likelihood, if not a certainty, of future misconduct.” In addition, the Commission found that a pattern of misconduct like Judge Velasquez’s, reflecting abuse of authority and serious infringement of defendants’ constitutional rights, necessarily has a negative impact on the judicial system. The Commission took note of the judge’s mitigating evidence from character witnesses, most of which concerned the judge’s positive contributions to the community outside of his judicial capacity and his reputation as a role model in the Latino community. The Commission found that these considerations were “overwhelmed by the breadth and severity of the judge’s past and present misconduct,” and stated, “Members of the community who appear before Judge Velasquez inside the courtroom are entitled to the same respect and dignity he accords those who consider him to be a role model outside the courtroom.” Judge Velasquez’s petition for review was denied by the California Supreme Court on October 10, 2007. Order of
Removal of Judge Robert G. Spitzer, Judge Robert G. Spitzer of the Riverside County Superior Court was ordered removed from office by the Commission on October 2, 2007, for willful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and persistent failure to perform judicial duties. The Commission’s action concluded formal proceedings, during which there was a hearing before special masters and an appearance before the Commission. At the end of 2007, Judge Spitzer’s petition for review was pending before the California Supreme Court. The Commission found that in four cases, Judge Spitzer significantly delayed giving signed orders to his clerk for processing, and that during the period of delay in three of these cases, Judge Spitzer failed to cooperate with his presiding judge’s repeated inquiries about the status of the cases and directives to resolve all outstanding matters. The Commission determined that these delays violated canons 3B(8), 1 and 2A, and that the judge engaged in prejudicial misconduct and persistent failure to perform judicial duties. The Commission stated, “By allowing judicial orders to sit unprocessed in his cluttered chambers for months, Judge Spitzer showed a complete indifference to the rights of litigants and his judicial responsibilities,” and noted that in one matter, an appeal was dismissed as untimely due to the delay. In addition, the Commission found that these and other delays were aggravated by Judge Spitzer’s failure to cooperate with his presiding judge. The Commission found that these delays, when combined with similar conduct discussed below, constituted a persistent failure to perform judicial duties. The Commission determined that Judge Spitzer delayed rendering decisions in four other cases. In one matter, the judge failed to rule for six years, and in the other three matters, he never issued rulings. The Commission concluded that this was prejudicial misconduct and persistent failure to perform judicial duties. In addition, the judge signed salary affidavits—a prerequisite to receiving his salary—falsely declaring he had no causes pending and undecided that had been under submission for more than 90 days. The Commission concluded that Judge Spitzer engaged in willful misconduct when he signed false salary affidavits after being informed of delays in two of the cases, and engaged in prejudicial misconduct in executing the remaining affidavits. The determination of willful misconduct was based on a finding that Judge Spitzer acted with an utter and reckless disregard for the truth when he continued to sign salary affidavits after being informed that he had delayed matters pending that remained undecided. The Commission also found that Judge Spitzer failed to take necessary action (issuance of certain orders) in two civil cases, failed to act on a criminal defendant’s request for a certificate of probable cause for almost ten months, and failed to issue an order to show cause in a fourth matter for over four months. The Commission determined that the judge’s inaction and delays violated canons 3B(8), and 2A, and constituted prejudicial misconduct and failure to perform judicial duties. The Commission noted that “inexcusable judicial delay and inaction undermine public confidence in the judiciary, and, as such, constitute prejudicial misconduct.” The Commission next found that Judge Spitzer engaged in willful misconduct and prejudicial misconduct in a criminal case. During trial, after Judge Spitzer became suspicious that the arresting officer was not available to testify, he called the watch commander where the deputy worked, without notifying the parties, and was told that the deputy was on medical leave. When the deputy was not present the next day, Judge Spitzer granted a defense motion to dismiss the case; the judge commented that the deputy had lost credibility with the entire court, and seemed upset and annoyed. Later that day, when the prosecutor and his supervisor went to talk to the judge in chambers, he told them that he had called the watch commander the night before and had been told that the deputy was on medical leave. The next day, however, the judge told the prosecutor that he had not called the watch commander, and had only asked about the deputy’s availability after the watch commander called him. Judge Spitzer also testified at the hearing before the special masters that the watch commander had called him. The masters and the Commission found that this testimony was not credible. The special masters and the Commission also rejected the judge’s testimony that he had not considered his communication with the watch commander in deciding to dismiss the case. The Commission adopted the special masters’ conclusion that Judge Spitzer displayed embroilment and bias in the case, beginning with his initiation of the ex parte communication. The Commission concluded that the judge engaged in willful misconduct by failing to disclose the ex parte communication and by considering the communication in reaching his decision. The Commission also concluded that the judge’s gratuitous public remarks about the deputy were contrary to canons 3B(4), 3B(5), 1 and 2A, and constituted prejudicial misconduct. In another criminal case, Judge Spitzer located and contacted a defense witness and made arrangements for her testimony, without the knowledge or consent of the parties. The Commission determined that the judge’s embroilment, manifested through his improper ex parte communication with the witness, constituted prejudicial misconduct. The Commission found that the judge “crossed the line between a neutral arbitrator and an advocate.” In a third criminal case, Judge Spitzer engaged in what the Commission found to be his “most egregious course of conduct involving embroilment and ex parte communications.” The defendant, while driving under the influence, was involved in an accident in which a child was killed; he was charged with murder. Near the end of the trial, while discussing jury instructions with counsel, Judge Spitzer urged the prosecutor to charge gross vehicular manslaughter as an alternative to murder; when he declined, the judge questioned his qualifications and asked that he speak with his supervisor. Judge Spitzer also asked to meet with the supervisor, who appeared before the judge that day to explain his office’s filing decision. After the jury deadlocked 11-1 in favor of guilt on the murder charge and convicted the defendant of lesser offenses, Judge Spitzer addressed several members of the decedent’s family in the courtroom, telling them that the case should be settled with a plea to vehicular manslaughter. When the decedent’s mother arrived after court had recessed, the judge directed that she come into chambers to talk to him. In a manner she perceived as intimidating, the judge attempted to enlist her in his efforts to convince the district attorney’s office to agree to a manslaughter disposition. At a subsequent court appearance, Judge Spitzer continued to pressure the prosecutor for a manslaughter disposition, and gave his impression that the decedent’s mother was “not hostile” to such a disposition. After the defendant declined to plead guilty to manslaughter for a 44-year sentence at a later trial readiness conference, Judge Spitzer called a supervising prosecutor to see whether there was a possibility of further negotiations, and said that the decedent’s mother was not opposed to a manslaughter plea. The Commission concluded that Judge Spitzer engaged in willful misconduct when he met privately with the decedent’s mother and attempted to enlist her in his efforts to persuade the district attorney’s office to charge the defendant with vehicular manslaughter, and when he pressured the district attorney’s office to amend the charges and made statements in court attempting to persuade the decedent’s family to agree to a manslaughter disposition. The Commission found that the judge was acting in a judicial capacity, that his conduct was contrary to canons 1, 2A, 3B(7) and 3B(8), and that he acted for the improper purpose of attempting to intrude on the functions of the executive branch of government. The Commission concluded that the judge abandoned his role as a neutral arbiter and became embroiled in a case. The Commission rejected the judge’s testimony that in speaking with the decedent’s mother he merely tried to comfort her and clarify the legal issues, finding that his comments to her reflected “an alarming lack of sensitivity in addition to being extraordinarily inappropriate and unjudicial.” The Commission further determined that Judge Spitzer engaged in prejudicial misconduct by failing to provide any response to a preliminary investigation letter sent to him by the Commission, after requesting and receiving three extensions of time to respond. The Commission found that this conduct was contrary to Government Code section 68725, as well as canons 1 and 2A. The Commission noted that the judge’s claim that he had not responded because he placed priority on his case load was belied by his persistent failure to attend to his judicial obligations. In deciding discipline, the Commission pointed out that Judge Spitzer had engaged in numerous instances of willful and prejudicial misconduct over a period of ten years, leaving the Commission with no doubt that he is unable to “perform judicial functions with the competence, temperament, and impartiality expected of the judiciary.” The Commission noted that the judge had not shown an appreciation of his misconduct, and had repeatedly avoided taking full responsibility for his actions. Identifying the likelihood of future misconduct as a “key factor” in its decision to remove Judge Spitzer, the Commission said that it was not persuaded by the judge’s assurances that he had taken steps to ensure timely performance of his judicial duties. The Commission pointed out that the judge had made similar representations—when he appeared before the Commission in 2003 to oppose an intended public admonishment for decisional delay, leading the Commission to decide against imposing discipline—that proved to be hollow. The Commission concluded that the judge’s “long history of disorganization, pervasive pattern of dysfunctional practices resulting in delays and inaction, and failure to appreciate the seriousness of his misconduct” left it no doubt that similar misconduct would reoccur if he received a civil assignment. In addition, the Commission pointed out that even the initiation of its preliminary investigation had not spurred the judge to change his practices, and that he instead had ignored his duty to cooperate with the Commission. The Commission also found a strong likelihood of future misconduct in a criminal assignment, noting that the judge had engaged in similar misconduct involving embroilment and ex parte communications in three criminal cases. On the issue of integrity and honesty, the Commission noted that Judge Spitzer’s integrity was called into question by his conduct in executing salary affidavits with reckless disregard for the truth and by his lack of candor in the Commission proceedings. The Commission pointed out that honesty is a minimum qualification for every judge. While noting that Judge Spitzer had not previously been disciplined, the Commission stated that the pattern of willful and prejudicial misconduct and persistent failure to perform judicial duties over a ten-year period overshadowed the lack of prior discipline. In addition, the Commission found that impact on the judicial system of Judge Spitzer’s misconduct and persistent failure to perform his duties had been significant. The Commission concluded that removal was required.
Public Censure by the Commission In 2007, the Commission imposed one public censure. Public Censure
of Judge Robert B. Freedman Judge Robert B. Freedman of the Alameda County Superior Court was ordered publicly censured by the Commission on June 26, 2007 for willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The Commission’s action concluded formal proceedings, during which there was a hearing before special masters and an appearance before the Commission. The Commission found that Judge Freedman failed to timely decide 21 civil matters pending before him between 2001 and 2004. The Commission also found that after 2001, despite warnings and offers of assistance from his presiding judge in 2001 and further warnings from a successor presiding judge in 2003, Judge Freedman failed to take appropriate action to monitor and track his caseload to avoid additional delay, and failed to adjust his workload in ways that could have helped him timely resolve the matters he had under submission. The Commission concluded that Judge Freedman’s persistent and unjustified failure to rule in numerous cases was contrary to canons 3A and 3B(8) and constituted prejudicial misconduct. The Commission also found that Judge Freedman regularly signed and submitted false salary affidavits during periods of delay, and that he executed some salary affidavits when he was aware, from reminders and requests, that he had delayed matters pending. The Commission deferred to the finding of the special masters that Judge Freedman was not consciously aware of the delayed matters when he signed the affidavits, based on his testimony that he executed the affidavits “by rote,” “without thinking,” and “without connect[ing] the dots.” The Commission concluded, however, that in those instances in which the judge executed salary affidavits after being informed of delayed matters, he acted with utter indifference to whether the affidavits were true or false. The Commission concluded that Judge Freedman’s “utter disregard for the truth or falsity of salary affidavits he signed when he knew he had delayed matters pending” constituted bad faith and rendered his conduct willful misconduct. The Commission also rejected certain technical arguments made by the judge regarding the affidavits. The Commission found that Judge Freedman failed to act in a timely fashion on about 200 applications for fee waivers in civil and family law cases. The Commission concluded that this conduct violated canons 1, 2A, 3A and 3B(8), and constituted prejudicial misconduct. In deciding discipline, the Commission first pointed out that there was “a pattern of disturbing and pervasive misconduct.” The Commission noted that though the judge had minor prior discipline—an advisory letter in 1998 for conduct that was not of the same kind or gravity as the misconduct before it—he had been counseled by presiding judges twice about delayed matters and nonetheless twice allowed the problem to recur. The Commission also found, however, that Judge Freedman appreciated the impropriety of his conduct. In addition, the Commission found that the judge was respected by attorneys and judges as a thoughtful, intelligent, compassionate and hard-working jurist. The Commission stated, “The esteem of his peers and his overall competence, work ethic, and superior ability, suggest that he is capable of reform, and that his removal from office is not necessary to protect the public.” The Commission found that Judge Freedman was not likely to commit misconduct in the future, stressing that since 2004, the judge had been entrusted with significant new judicial responsibility, and no further misconduct had occurred. The Commission also found, however, that the judge’s misconduct had had an “obvious and palpable” negative impact on the judicial system. The Commission concluded that although Judge Freedman had committed serious misconduct that, taken alone, might warrant removal from office, he was a “respected and talented jurist” who had acknowledged his wrongdoing and was unlikely to offend again. The Commission therefore determined to issue a severe public censure. Public Admonishment by the Commission The Commission may publicly or privately admonish a judge for improper action or dereliction of duty. Public admonishments are issued in cases when the improper action or dereliction of duty is more serious than conduct warranting a private admonishment. In 2007, five public admonishments were issued.
Public
Admonishment of Former
Judge Vincent P. DiFiglia Judge Vincent P. DiFiglia, retired from the San Diego County Superior Court, was publicly admonished for conduct that constituted, at a minimum, improper action, pursuant to Commission Rules 115-116 (governing public admonishments). The Commission found that while presiding over a civil case, Judge DiFiglia failed to disclose on the record any information about his long-term personal relationship with an attorney representing a party, contrary to canon 3E(2). The judge failed to make such disclosure despite the fact that he had been privately admonished by the Commission eight years earlier for failing to disclose on the record his relationship with the same attorney and his partner, and his acceptance of golf tournament fees from them. In addition, while the case was in trial before him, Judge DiFiglia escorted a secretary then employed in the office of the attorney to a Christmas party hosted by the American Board of Trial Advocates. This conduct was contrary to canon 2A. The Commission also found that Judge DiFiglia failed to disclose on the record that he had been previously employed by the city attorney’s office, a party in the case; this was contrary to canon 3E(2). The Commission concluded that the judge’s conduct was, at a minimum, improper action. Public
Admonishment of
Judge Ronald M. Sohigian Judge Ronald M. Sohigian, of the Los Angeles County Superior Court, was publicly admonished for conduct that constituted, at a minimum, improper action, pursuant to Commission Rules 115-116 (governing public admonishments). The Commission found that Judge Sohigian engaged in a practice of abusing his judicial authority in connection with the issuance of orders to show cause (OSC’s) re sanctions, in violation of canons 1, 2A, and 3B(2). Judge Sohigian routinely issued OSC’s to plaintiffs for failing to appear at the initial status conference in civil cases, even where the plaintiffs had appeared through counsel and there was no requirement that they appear personally. The judge also issued OSC’s to defendants for failing to give notice of the initial status conference, despite the fact that only the plaintiffs were required to give notice. In addition, Judge Sohigian engaged in a practice of repeatedly continuing hearings on certain OSC’s, thereby postponing decision, even though he had received a response from the party or parties threatened with sanctions that would have allowed him to decide whether to impose sanctions; this practice subjected the parties to the threat of sanctions for indeterminate periods. Further, Judge Sohigian routinely issued OSC’s at initial status conferences threatening to terminate a case or a party’s defense at the outset of the case, despite the fact that the law permits dismissal of a case or striking of a pleading as a sanction only if it appears that less severe sanctions would not be effective, after taking into account the effect of previous sanctions or previous lack of compliance in the case. The Commission acknowledged Judge Sohigian’s expressions of regret, his admission that his practices were wrong, and his statement that he had taken remedial action, but rejected the suggestion that his abuses of power occurred wholly or in part because the OSC forms used by him and by other judges were defective. The Commission concluded that it was at least improper action for the judge to issue OSC’s threatening sanctions against innocent counsel and parties for the purpose of compelling them to provide information about some other person’s wrongdoing, and that it was similarly improper to repeatedly continue hearings on OSC’s for the purpose of holding potentially severe sanctions in abeyance throughout the action in order to consider acts and omissions occurring after issuance of the OSC in setting any sanction. In a separate matter, the Commission found that Judge Sohigian treated an attorney appearing before him in a belittling, rude and sarcastic manner. The judge’s demeaning comments concerning the attorney’s credibility and competence were found to be contrary to canon 3B(4). In determining that a public admonishment was appropriate, the Commission considered that Judge Sohigian had received an advisory letter in 1991 for abusing his authority in sanctioning attorneys. Public
Admonishment of
Judge James M. Petrucelli Judge James M. Petrucelli, of the Fresno County Superior Court, was publicly admonished for conduct that constituted, at a minimum, improper action, pursuant to Commission Rules 115-116 (governing public admonishments). The Commission found that Judge Petrucelli engaged in a pattern of conduct contrary to canon 3B(4) while presiding in family law and traffic matters, which included making discourteous, sarcastic or demeaning comments to attorneys and litigants appearing before him. In one family law case, after an attorney wrote the calendar line item number rather than a case number on a form used by the court clerk to locate files, the judge angrily scolded the attorney in an elevated tone of voice for “lack of cooperation,” and accused him of chastising and attempting to talk over the court. In another family law case, the judge made a statement to an attorney who had stated her client’s position regarding her ex-husband’s request for unsupervised visitation with their children, to the effect of, “If your client persists in this behavior, I will do everything in my power to see that custody is taken away from her.” The comment was contrary to canon 3B(4) and reflected embroilment. In a third family law case, the judge improperly disparaged an attorney who was seeking to disqualify him; the judge intermittently used a loud, angry and abrasive tone of voice when making his demeaning and belittling comments in front of the attorney’s clients. The judge called the attorney’s conduct “deplorable,” said that her clients “could do much better without [her] today,” stated that she had caused her clients “a lot of grief,” and said that he would disqualify himself in all her cases because he thought she was “not an appropriate counsel for people in this situation.” The Commission found that Judge Petrucelli’s remarks were gratuitous and an improper response to an attempt to disqualify him. In a fourth family law case, the judge said, “I wonder how well these parents would do without their lawyers.” The Commission found that the comment improperly disparaged the attorneys in front of their clients, and was demeaning and belittling. In a fifth family law case, Judge Petrucelli asked a litigant he was questioning, “Is there a language problem here?” in a loud and angry tone of voice, made a gratuitous and sarcastic comment about the litigant’s having become involved in an affair with a woman in Mongolia because “it was cold and so you needed someone to stay warm with,” made belittling comments to the effect that the litigant must be a poor car salesman because his earnings were so low, and made sarcastic remarks about the litigant’s “new, young wife,” the “Mongolian lady.” In a sixth family law case, the judge became involved in a heated argument with an attorney in chambers that lasted about five minutes. The judge was yelling. In traffic court, Judge Petrucelli made remarks about an officer who had failed to appear to testify—because he was testifying at a driving under the influence trial in another court—that were disparaging to the officer and discourteous to other officers who were in court. The Commission found that the judge’s remarks were contrary to canon 3B(4), and were also contrary to canon 2A, in that they created the appearance of a lack of impartiality by publicly indicating that the judge was attempting to ensure the presence of officers to testify for the prosecution. In another instance, when a traffic litigant who had said she wished to “plead guilty with an explanation” was speaking about her case, Judge Petrucelli interrupted to say, “What could you possibly explain, that you think the radar was wrong or what? The fine is going up by the minute, so you understand. I mean, just tell me what you think you could possibly say to make me lower the fine?” The Commission found that by threatening that the fine was “going up by the minute,” the judge created the appearance that he was improperly trying to discourage the litigant from speaking before she was sentenced; in addition, the comment was inconsistent with canon 3B(4). In another traffic matter, the judge told a litigant whose speed had been measured by radar that he did not see how the litigant was going to talk him out of going by the radar, and then said that if the litigant wanted to “try and embarrass” himself by telling the judge that he wasn’t going the measured speed, he could do so. The Commission found that the comment created the appearance that Judge Petrucelli was improperly trying to discourage the litigant from arguing his case and was contrary to canon 3B(4). Finally, the judge made demeaning comments to a traffic litigant about his failure to notice a CHP officer behind him, remarking that CHP officers “drive those really funny looking cars” that are “different colors” and “usually…have lights on top,” and telling the litigant that the “rear view mirror is for something besides fixing your hair and stuff, you know.” In determining that public admonishment was appropriate, the Commission noted that Judge Petrucelli received an advisory letter in 2001 for his inappropriate response to the filing of a peremptory challenge, and another advisory letter in 2001 for an incident in which he raised his voice at county employees and accused them of calling him a “liar,” and for his practice regarding disqualification and disclosure as to an attorney employed by his former law firm. Public
Admonishment of
Judge Clarence Westra, Jr. Judge Clarence Westra, Jr., of the Kern County Superior Court, was publicly admonished for conduct that constituted, at a minimum, improper action, pursuant to Commission Rules 115-116 (governing public admonishments). The Commission found that on two occasions, Judge Westra failed to be patient, dignified and courteous toward deputies from the sheriff’s department, as required by canon 3B(4). In one incident, the judge summoned and chastised the new commander of court services for allowing a bailiff who had been sworn to take charge of a deliberating jury to leave the courthouse to attend mandatory firearms training, leaving a replacement bailiff available for the jury. The judge told the commander that the bailiff’s departure was “unacceptable” and that he “would not tolerate it.” When the commander asked Judge Westra if he had a written protocol in place concerning his courtroom, the judge told her that she was not going to tell him how to run his courtroom, and directed her to leave his chambers. When she did not immediately leave, he pointed at the door of his chambers and yelled “Get out!” at her more than once. In the second incident, the judge said to a deputy concerning a failure to follow the judge’s courtroom procedures, “The Keystone cops could have handled it better.” In determining that public admonishment was appropriate, the Commission noted that Judge Westra had been the subject of extensive prior discipline, much of which concerned improper treatment of those with whom he deals in an official capacity. In 2003, the judge received an advisory letter for abuse of authority after he ordered that construction workers who were renovating the courthouse be brought to his courtroom, where he ordered them to stop using power equipment at certain times and ordered them to state their names on the record. In 1992, the judge received an advisory letter for making denigrating remarks about an absent attorney in open court. In 1990, the judge received an advisory letter for making denigrating remarks about an absent deputy district attorney in open court. In addition, in 2001, Judge Westra received an advisory letter for abusing his authority as presiding judge by excluding two municipal court judges from certification for pay parity because he disagreed with their handling of certain cases. In 1988, the judge received an advisory letter for failing, in his role as presiding judge, to appropriately supervise a court commissioner who had delayed a ruling in a family law case, and for failing to respond to letters from the complainant inquiring about the delay. Public
Admonishment of Judge Pamela Lee Iles
Judge Pamela Lee Iles, of the Orange County Superior Court, was publicly admonished for conduct that constituted, at a minimum, improper action, pursuant to Commission Rules 115-116 (governing public admonishments). The Commission found that in a criminal domestic violence case, Judge Iles accepted a plea agreement proposed by the defense under which sentencing would be postponed and the defendant released on his own recognizance on the condition that he leave and remain outside of California. Judge Iles made it clear that the defendant could avoid imposition of sentence if he did not appear for sentencing, and agreed that the bench warrant issued when he failed to appear would specify that it could be served only in California. The prosecutor did not object to the plea bargain. The defendant failed to appear for sentencing, and the bench warrant issued. When the defendant returned to California in 2006, he was arrested on the warrant. In subsequent writ proceedings, the Court of Appeal held that the plea bargain was unconstitutional and void as overbroad, uncertain as to duration, and contrary to public policy. In explaining to the Commission why she had approved the plea bargain, Judge Iles said that the defendant could have been deported if sentenced. She said she had been advised that he would be subject to torture and likely execution in his home country if deported. The Commission found that Judge Iles had an obligation to evaluate and determine the legality of the plea agreement, and that her approval of the plea bargain was contrary to canons 2A and 3B(2). The Commission pointed out that the law makes clear that sending felons to other states is prohibited by public policy. The Commission found that the judge’s approval of the plea agreement reflected a purpose other than the faithful discharge of judicial duties and was, at a minimum, improper action. In issuing the public admonishment, the Commission considered the judge’s history of Commission discipline. The judge received an advisory letter in 1988 for failing to strictly abide by statutory requirements in imposing sanctions on a litigant. She received an advisory letter in 1997 for telling a defendant that his probation would be violated if the victim contacted him, denying him bail pending appeal although he was statutorily entitled to it, and participating in settling the record on appeal after having been disqualified, which gave rise to an appearance of embroilment and abandonment of judicial neutrality. The judge received a private admonishment in 2004 for personally contacting a prosecutor and suggesting that he investigate an attorney for perjury, asking witnesses to prepare declarations for the district attorney’s office, and repeatedly contacting prosecutors about their investigation while it was ongoing. She received a public admonishment in 2006 for summarily incarcerating an unrepresented defendant in disregard of his fundamental rights.
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