Overview of Commission Proceedings
The Authority of the Commission on Judicial Performance
The Commission on Judicial Performance is the independent state agency responsible for investigating complaints of judicial misconduct and judicial incapacity and for disciplining judges (pursuant to article VI, section 18 of the California Constitution). Its jurisdiction includes all active California judges. The commission also has authority to impose certain discipline on former judges, and the commission has shared authority with local courts over court commissioners and referees. In addition, the Director-Chief Counsel of the commission is designated as the Supreme Court’s investigator for complaints involving State Bar Court judges. The commission does not have authority over temporary judges (also called judges pro tem) or private judges. In addition to its disciplinary functions, the commission is responsible for handling judges’ applications for disability retirement.
Under the California Constitution and the commission’s rules, complaints to the commission and commission investigations are confidential. The commission ordinarily cannot confirm or deny that a complaint has been received or that an investigation is under way. Persons contacted by the commission during an investigation are advised regarding the confidentiality requirements. After the commission orders formal proceedings, the charges and all subsequently filed documents are made available for public inspection. Any hearing on the charges is also public.
Review and Investigation of Complaints
To view a chart of commission proceedings, see Commission Proceedings Chart.
At commission meetings, which occur approximately every seven weeks, the commission decides upon the action to take with respect to each new complaint. When a complaint states facts which, if true and not otherwise explained, would be misconduct, the commission orders an investigation in the matter. Investigations may include interviewing witnesses, reviewing court records and other documents, and observing the judge while court is in session. Unless evidence is uncovered which establishes that the complaint lacks merit, the judge is asked to comment on the allegations.
Close Without Discipline
Many of the complaints received by the commission do not involve judicial misconduct. For example, a judge’s error in a decision or ruling does not ordinarily constitute judicial misconduct. Appeal may be the only remedy for such an error, or there may be no remedy. Cases that on their face do not allege judicial misconduct are closed by the commission after initial review. If, after an investigation, the allegations are found to be untrue or unprovable, the commission will close the case without any disciplinary action against the judge. When cases are closed without discipline, the person who lodged the complaint is notified that the commission has found no basis for action against the judge or has determined not to proceed further in the matter.
Disciplinary Action the Commission Can Take
The following sanctions are available under California law:
- Advisory Letter
- Private Admonishment
- Public Admonishment
- Public Censure
- Removal from Office / Involuntary Retirement
After an investigation and an opportunity for comment by the judge, if the commission determines that improper conduct occurred but the misconduct was relatively minor, the commission may issue an advisory letter to the judge. In an advisory letter, the commission advises caution or expresses disapproval of the judge’s conduct.
When more serious misconduct is found, the commission may issue a private admonishment. A private admonishment consists of a notice sent to the judge containing a description of the improper conduct and the conclusions reached by the commission.
Advisory letters and private admonishments are confidential. The commission and its staff ordinarily cannot advise anyone, even the person who lodged the complaint, of the nature of the discipline that has been imposed. However, the commission’s rules provide that upon completion of an investigation or proceeding, the person who lodged the complaint will be advised either that the commission has closed the matter or that appropriate corrective action has been taken. The California Constitution also provides that, upon request of the governor of any state, the President of the United States, or the Commission on Judicial Appointments, the commission will provide the requesting authority with the text of any private admonishment or advisory letter issued to a judge who is under consideration for a judicial appointment.
For summaries of advisory letters and private admonishments issued in prior years, see Private Discipline.
In cases involving more serious misconduct, the commission may issue a public admonishment or a public censure. This can occur after a hearing or without a hearing if the judge consents. The nature and impact of the misconduct generally determine the level of discipline. Both public admonishments and public censures consist of notices that describe a judge’s improper conduct and state the findings made by the commission; public censure is a more severe sanction than a public admonishment. Each notice is sent to the judge and made available to the complainant, the press and the general public. In cases in which the conduct of a former judge warrants public censure, the commission also may bar the judge from receiving assignments from any California state court.
In the most serious cases, the commission may determine – following a hearing – to remove a judge from office. Typically, these cases involve persistent and pervasive misconduct. In cases in which a judge is no longer capable of performing judicial duties, the commission may determine – again, following a hearing – to involuntarily retire the judge from office.
A judge may petition the Supreme Court to review an admonishment, public censure, removal or involuntary retirement determination. A judge may petition the Supreme Court for a writ of mandate to challenge an advisory letter.
Procedures Relating to Subordinate Judicial Officers
The constitutional provisions governing the commission’s role in the oversight and discipline of court commissioners and referees expressly provide that the commission’s jurisdiction is discretionary. Each superior court retains initial jurisdiction to discipline subordinate judicial officers or to dismiss them from its employment and also has exclusive authority to respond to complaints about conduct problems outside the commission’s constitutional jurisdiction. Since the local court’s role is primary, the commission’s rules require that complaints about subordinate judicial officers be made first to the local court.
Complaints about subordinate judicial officers come before the commission in a number of ways. First, when a local court completes its disposition of a complaint, the complainant has the right to seek review by the commission. When closing the complaint, the court is required to advise the complainant to seek such review within 30 days. Second, a local court must notify the commission when it disciplines a subordinate judicial officer for conduct that, if alleged against a judge, would be within the jurisdiction of the commission. Third, a local court must notify the commission if a subordinate judicial officer resigns while a preliminary or formal investigation is pending concerning conduct that, if alleged against a judge, would be within the jurisdiction of the commission, or under circumstances that would lead a reasonable person to conclude that the resignation was due, at least in part, to a complaint or allegation of misconduct. Lastly, the commission may investigate or adjudicate a complaint against a subordinate judicial officer at the request of a local court.
When a matter comes to the commission after disposition by a local court, the commission may commence an investigation of the subordinate judicial officer if it appears that the court has abused its discretion by failing to investigate sufficiently, by failing to impose discipline, or by imposing insufficient discipline. When a court commissioner or referee has resigned while an investigation is pending or has been terminated by the local court, the commission may commence an investigation to determine whether to conduct a hearing concerning the individual’s fitness to serve as a subordinate judicial officer. To facilitate the commission’s review of complaints and discipline involving subordinate judicial officers, the California Rules of Court require superior courts to adopt procedures to ensure that complaints are handled consistently and that adequate records are maintained. Upon request by the commission, the superior court must make its records concerning a complaint available to the commission.
The Constitution requires the commission to exercise its disciplinary authority over subordinate judicial officers using the same standards specified in the Constitution for judges. Thus, the rules and procedures that govern investigations and formal proceedings concerning judges also apply to matters involving subordinate judicial officers. In addition to other disciplinary sanctions, the Constitution provides that a person found unfit to serve as a subordinate judicial officer after a hearing before the commission shall not be eligible to serve as a subordinate judicial officer. The Constitution also provides for discretionary review of commission determinations upon petition by the subordinate judicial officer to the California Supreme Court.