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State of California
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POLICY DECLARATIONS Approved May 28, 1997. As last amended May 22, 2008.
PREAMBLE TITLE DIVISION I. COMPLAINTS AND INVESTIGATIONS 1.1 Anonymous Complaints 1.2 Staff Inquiries 1.3 Staff Inquiry Letters 1.4 Preliminary Investigations 1.5 Preliminary Investigation Letters 1.6 Authorization for Staff Inquiries and Preliminary Investigations Between Meetings 1.7 Staff Inquiry and Preliminary Investigation Letters Not Authorized or Determined Not to Be Warranted 1.8 Cases Removed From Active Calendar 1.9 Admonishments to Persons Giving Interviews and Statements 1.10 Consent, Preservation of Witness Interviews and Statements 1.11 Independent Record of Witness Statements 1.12 Investigation Subpoenas 1.13 Witness Statements Under Oath 1.14 Submission of Character Letters
DIVISION II. APPEARANCES AND FORMAL PROCEEDINGS 2.1 Opposition to Proposed Private and Proposed Public Admonishments; Statement of Objections and Appearance 2.2 Date of Hearing 2.3 Prehearing Proceedings 2.4 Agreed Statement and Discipline by Consent 2.5 Order Barring Assignments to Former Judges 2.6 Modification of Decision Following Formal Proceedings
DIVISION III. COMMISSION ADMINISTRATION 3.1 Setting Regular and Special Meetings 3.2 Organizational Meeting; Election of Chairperson and Vice-Chairperson 3.3 Preparation of Annual Report 3.4 Availability of Commission Rules and Policy Declarations 3.5 Review of Commission Rules, Proposed Changes 3.6 Policy Declarations 3.7 Staff Authorization for Announcements Between Meetings 3.7.5 Announcement at Conclusion of Previously-Announced Investigation 3.8 Duties of Trial Counsel 3.9 Legal Advisor to Commissioners 3.10 Records Disposition Policy 3.11 Biennial Adjustment of Gift Limitation Amount 3.12 Extensions of Time
DIVISION IV. DISCLOSURE OF INFORMATION 4.1 Public Safety 4.2 Disclosure of Information to Prosecuting Authorities 4.3 Disclosure of Disciplinary Records to Public Entity Upon Request/With Consent of Judge 4.4 Disclosure of Records of Disciplinary Action to Appointing Authorities 4.5 Disclosure of Information Regarding Pending Proceedings to Appointing Authorities 4.5.5 Limitation on Disclosure to Appointing Authorities – Complaints Not Yet Reviewed by the Commission 4.6 Disclosure of Information to Public Entities Upon Retirement or Resignation
DIVISION V. DISABILITY RETIREMENT APPLICATIONS 5.1 Disability Applications: Confidentiality 5.2 Disability Applications: Medical Consultants 5.3 Reexamination of Judges Retired for Disability 5.4 Procedure in Disability Retirement Matters 5.5 Disability Applications: Burden of Proof 5.6 Procedure in Restoration to Capacity Matters
DIVISION VI. CODE OF ETHICS FOR COMMISSION MEMBERS Preface 6.1 Recusal 6.2 Confidentiality 6.3 Ex Parte Contacts 6.4 Judicial Election Activities 6.5 Impropriety and Appearance of Impropriety
PREAMBLE In consideration of the need for both uniformity and continuity of procedure and equitable, expeditious resolution of recurrent and detailed issues of procedure, the commission has authorized the formulation of the following policy declarations detailing commission policies, procedures and practices. These policy declarations are to reflect internal procedural detail neither duplicative of nor inconsistent with constitutional mandate or statutes or Commission Rules. These policy declarations are based upon concepts of utility, experience, and fair hearing of matters before the commission. Rules referred to in the policy declarations are Commission Rules. TITLE These policy declarations shall be known and may be cited as the Policy Declarations of the Commission on Judicial Performance. DIVISION I. COMPLAINTS AND INVESTIGATIONS 1.1 Anonymous Complaints Staff will evaluate anonymous complaints for merit; if a complaint is deemed sufficiently meritorious, it will be placed on the oversight agenda for consideration by the commission as to whether or not it should be docketed. [Approved 5/28/97.] 1.2 Staff Inquiries The staff inquiry is one of the commission’s two levels of investigation. A staff inquiry may, but need not, precede a preliminary investigation. The purpose of a staff inquiry is to determine whether sufficient facts exist to warrant a preliminary investigation. At the conclusion of a staff inquiry the commission may take any of the following actions: (1) Close the matter; (2) Authorize a preliminary investigation; or (3) Issue an advisory letter. A judge must receive an inquiry letter and be afforded an opportunity to respond before an advisory letter may issue. [Approved 5/28/97.] 1.3 Staff Inquiry Letters An inquiry letter includes specification of the allegations and may include: the date of the conduct; the location(s) where the conduct occurred; if applicable, the name(s) of the case(s) or identification of the court proceeding(s) in relation to which the conduct occurred. If the inquiry concerns statements made by or to the judge, the letter may also include the text or summaries of the comments. The purpose of the inquiry letter is to afford the judge an opportunity to provide such matters as the judge may choose, including information about the factual aspects of the allegations and other relevant comment. [Approved 5/28/97.] 1.4 Preliminary Investigations The preliminary investigation is the second of the commission’s two levels of investigation. A preliminary investigation may follow a staff inquiry or may be instituted without a staff inquiry having been conducted. Where the allegations, if true, would warrant consideration of commission action greater than issuance of an advisory letter or when the use of investigation subpoenas and more formal investigative procedures are contemplated, the commission may commence with a preliminary investigation. The purpose of a preliminary investigation is to determine whether formal proceedings should be instituted and a hearing held. At the conclusion of a preliminary investigation, or at the conclusion of a period of monitoring under rule 112, the commission may take any of the following actions: (1) Close the matter; (2) Issue an advisory letter; (3) Issue a notice of intended private admonishment or notice of intended public admonishment; or (4) Institute formal proceedings. A judge must receive an inquiry letter and be afforded an opportunity to respond before an advisory letter may issue. A judge must receive a preliminary investigation letter and be afforded an opportunity to respond before a notice of intended private admonishment or notice of intended public admonishment may issue or formal proceedings may be instituted. [Approved 5/28/97.] 1.5 Preliminary Investigation Letters A preliminary investigation letter provides the judge notice of the investigation and the nature of the charge under review and may include: the date of the conduct; the location(s) where the conduct occurred; if applicable, the name of the case(s) or identification of the court proceeding(s) in relation to which the conduct occurred. If the investigation concerns statements made by or to the judge, the letter may also include the text or summaries of the comments. The purpose of the preliminary investigation letter is to afford the judge an opportunity to provide such matters as the judge may choose including information about the factual aspects of the allegations and other relevant comment. [Approved 5/28/97.] 1.6 Authorization for Staff Inquiries and Preliminary Investigations Between Meetings In instances where a matter comes to the attention of the commission between meetings, which on its face appears to warrant a staff inquiry or a preliminary investigation and there has already been direct communication with the subject judge or other exigent circumstances exist, an effort should be made, whenever possible, to poll all of the commission members for authorization of a staff inquiry or preliminary investigation. If, in the discretion of the chairperson or acting chairperson, polling all of the members is not feasible, the chairperson or acting chairperson may authorize the staff inquiry or preliminary investigation. When a staff inquiry or preliminary investigation is authorized without a poll of the members, the members shall be promptly notified of the action taken. [Approved 5/28/97.] 1.7 Staff Inquiry and Preliminary Investigation Letters Not Authorized or Determined Not to Be Warranted At the time a staff inquiry or preliminary investigation is authorized by the commission, the authorization may or may not include writing the judge a letter, in addition to other investigation. If information acquired during the inquiry or preliminary investigation establishes that there is no basis for further proceedings, the inquiry or preliminary investigation may be closed without the judge being contacted. An inquiry or preliminary investigation letter authorized by the commission need not be sent if information obtained by staff before the letter is sent shows that the letter may not be warranted. [Approved 5/28/97.] 1.8 Cases Removed From Active Calendar The commission may defer its consideration of a pending matter and direct that the staff inquiry or preliminary investigation be removed from the commission’s active calendar. Circumstances which may warrant deferral in the commission’s consideration of a matter include: when the case from which the complaint arose is still pending before the judge; when an appeal or ancillary proceeding is pending in which factual issues or claims relevant to the complaint are to be resolved; when criminal or other proceedings involving the judge are pending. When a matter is removed from the commission’s active calendar, it shall be placed on the commission agenda periodically as required by the circumstances, at intervals not to exceed six (6) months, and subject to active consideration at the discretion of the commission. [Approved 5/28/97.] 1.9 Admonishments to Persons Giving Interviews and Statements In the course of a staff inquiry or preliminary investigation, persons questioned or interviewed to ascertain the validity of allegations shall be admonished that the inquiry or investigation is confidential under the California Constitution and Commission Rules. When it appears that there may be use of the elicited information in connection with possible testimony or discovery, the person providing the information shall be so advised. [Approved 5/28/97.] 1.10 Consent, Preservation of Witness Interviews and Statements Consent to mechanical recording may be obtained from interviewees. Statements and interviews may be transcribed and preserved, and may be submitted to interviewees for signature and verification. [Approved 5/28/97.] 1.11 Independent Record of Witness Statements Where a witness statement or interview is not transcribed or recorded, it is not to be conveyed, commented upon or otherwise communicated to the commission by commission staff unless an independent memorialization of the statement has been prepared by staff (a writing other than a case memorandum or report from staff to the commission) [Approved 5/28/97.] 1.12 Investigation Subpoenas Commission investigation subpoenas may issue upon application to the commission chairperson, vice-chairperson or the designee of either, stating the name, address and title, if any, of the person from whom information is sought, and whether or not a statement under oath is to be taken. [Approved 5/28/97.] 1.13 Witness Statements Under Oath When the statement of a witness is taken under oath pursuant to Government Code section 68750, the witness may be given an opportunity to review and make corrections to the transcript of the witness’s testimony at the office of the court reporter before whom the statement was taken. A copy of the statement shall not otherwise be furnished to the witness unless formal proceedings are instituted in the matter in which the testimony was given and the witness’s statement is discoverable under rule 122. [Approved 6/25/98.] 1.14 Submission of Character Letters (1) Written communications submitted during staff inquiry or preliminary investigation During a staff inquiry or preliminary investigation, written communications containing information related to the character of a judge who has a matter pending before the commission may be submitted to the commission. Such written communications must be delivered to the commission office, and shall not be delivered to individual commission members. In determining the weight to be given to written character references, the commission may consider, but is not limited to, the following list of factors: (1) The length of time the author of the written communication has known the judge, and the nature and extent of the author’s contact with the judge; (2) Whether the character reference is submitted in the form of a declaration signed under penalty of perjury; and (3) Whether the information provided by a person other than a judge or subordinate judicial officer is based on personal knowledge. Pursuant to canon 2B, character references submitted by judges or subordinate judicial officers must be based on personal knowledge. (2) Written communications submitted after the initiation of formal proceedings After the initiation of formal proceedings, written communications related to the character of the respondent judge may only be submitted by stipulation of the parties at the hearing held pursuant to rule 123 or rule 133. After the completion of the evidentiary hearing pursuant to rule 123 or 133, such communications shall not be accepted by the commission. [Approved 5/22/08.] DIVISION II. APPEARANCES AND FORMAL PROCEEDINGS 2.1 Opposition to Proposed Private and Proposed Public Admonishments; Statement of Objections and Appearance An appearance before the commission to contest the imposition of a proposed private admonishment under rule 114, or to contest the imposition of a proposed public admonishment under rule 116, means an opportunity for a judge to informally contest the imposition of an admonishment in argument before the commission based on the proceedings which resulted in the issuance of a notice of intended admonishment and the judge’s statement of objections. A judge’s demand for an appearance after notice of intended private admonishment under rule 114, or notice of intended public admonishment under rule 116, may include a written statement of the judge’s objections, both legal and factual, to the commission’s proposed findings. The judge’s statement may include points and authorities in support of any legal arguments and verified statements in opposition to the commission’s factual findings. The appearance before the commission will be scheduled after receipt of the judge’s demand for appearance and statement of objections. The commission may request further briefing. At the appearance before the commission, the judge may appear with or without counsel. The appearance is not an evidentiary hearing and there is no testimony by witnesses. Argument shall be limited to oral presentation not to exceed twenty (20) minutes by the judge and twenty (20) minutes by trial counsel or other attorney designated by the commission to present argument in support of the admonishment. [Approved 5/28/97.] 2.2 Date of Hearing Absent unusual circumstances, the evidentiary hearing on the charges set forth in a notice of formal proceedings shall be set to commence two to four months following the issuance under rule 118 of the notice of formal proceedings. [Approved 5/28/97; amended 8/26/04.] 2.3 Prehearing Proceedings The commission or the special masters may require prehearing status statements, briefs or conferences (either by telephone or in person), or require any other appropriate prehearing proceeding. The purpose of such prehearing proceedings is to provide the commission or the special masters with pertinent information for prehearing and to ensure that the hearing proceeds efficiently. The masters may issue appropriate prehearing orders and may determine whether any such order needs be in writing. [Approved 5/28/97; amended 8/26/04.] 2.4 Agreed Statement and Discipline by Consent An agreed statement under rule 125(a) may be offered by the respondent judge and the examiner in place of all or part of the evidence after institution of formal proceedings. An agreement between the respondent judge and the examiner for discipline by consent under rule 127 may be submitted to the commission after institution of formal proceedings. The examiner is responsible for handling negotiations with the respondent judge or respondent judge’s counsel concerning agreed statements and agreements for discipline by consent. [Approved 5/28/97.] 2.5 Order Barring Assignments to Former Judges If the commission determines to bar a former judge from receiving an assignment, appointment to or reference of work from any California state court, pursuant to article VI, section 18(d) of the California Constitution, the order barring the judge from receiving assignments will be included in the commission’s order of censure. Notice of an order barring a former judge from receiving assignments shall be given to the Chief Justice and to the Administrative Office of the Courts for distribution to the presiding judges of the state courts. [Approved 6/25/98.] 2.6 Modification of Decision Following Formal Proceedings At any time before a commission determination to impose discipline upon a judge following formal proceedings becomes final under rule 136, the commission may modify the order regarding the disciplinary determination to eliminate any erroneous statement of fact or law in the order. [Approved 6/29/05.] DIVISION III. COMMISSION ADMINISTRATION 3.1 Setting Regular and Special Meetings (1) Before the end of each calendar year, staff will propose a choice of dates for each meeting for the next calendar year. At its March organizational meeting, the commission will approve the meeting dates for the remainder of the year. (2) A special meeting shall be called (a) upon not less than five (5) days notice by the chairperson or acting chairperson, or (b) upon notice of request of not less than four (4) members. [Approved 5/28/97.] 3.2 Organizational Meeting; Election of Chairperson and Vice-Chairperson At its March meeting each year, the commission shall organize itself for the conduct of business for the ensuing year and shall select a chairperson and vice-chairperson. [Approved 5/28/97.] 3.3 Preparation of Annual Report At the end of each calendar year, staff will prepare a draft annual report for circulation to the commission or such members as the commission delegates for review of the draft report. After the draft report is reviewed and suggestions made, staff will revise the draft report in accordance therewith and will submit the report in final form to the chairperson for approval for publication within the first quarter of the calendar year. [Approved 5/28/97; amended 2/11/99.] 3.4 Availability of Commission Rules and Policy Declarations The rules and policy declarations of the commission will be published by the commission and distributed to the public upon request. The commission’s rules and policy declarations are also to be published, to the extent possible, in legal publications including the California Official Reports Advance Sheets and other legal publications and on-line services. [Approved 5/28/97; amended 2/11/99.] 3.5 Review of Commission Rules, Proposed Changes Every two years, in even-numbered years, the commission shall review its rules and any proposed enactments, amendments or repeals. Comments regarding proposed changes to the rules which are received by the commission other than during its biennial rules review may be considered by the commission and either deferred to the next review of the rules or acted upon as may be appropriate. [Approved 5/28/97; amended 2/4/04.] 3.6 Policy Declarations When there is commission approval for staff to draft a policy declaration, any proposed enactment, amendment or repeal shall be submitted to each commission member at least ten (10) days immediately preceding the meeting at which a vote thereon is taken. The commission may have the proposed enactment, amendment or repeal reviewed by the rules committee prior to a vote by the commission. [Approved 5/28/97.] 3.7 Staff Authorization for Announcements Between Meetings When the director believes an announcement pursuant to California Constitution, article VI, section 18(k) or pursuant to rule 102(c) is appropriate between meetings in a particular proceeding, the director shall so advise the chairperson or acting chairperson. An effort should be made, whenever possible, to poll all of the members for authorization of the announcement. If, in the discretion of the chairperson or acting chairperson, polling all of the members is not feasible, the chairperson or acting chairperson may authorize the announcement. When an announcement is authorized without a poll of the members, the members shall be promptly notified of the action taken. [Approved 5/28/97.] 3.7.5 Announcement at Conclusion of Previously-Announced Investigation When the commission has issued a public statement announcing or confirming that a matter is under investigation pursuant to article VI, section 18(k) or pursuant to rule 102(c), at the conclusion of the investigation, the commission shall issue a public statement indicating that the previously-announced investigation has been completed. If the matter has been concluded by the commission, the announcement shall so state. If the commission has instituted formal proceedings, the announcement shall so state, and the announcement may include an explanation of formal proceedings. [Approved 2/11/99.] 3.8 Duties of Trial Counsel Trial counsel shall serve as examiner in formal proceedings instituted by the commission and shall represent the commission in litigation before the California Supreme Court and other courts when directed to do so by the commission. Trial counsel shall serve under the direction of the commission’s director-chief counsel. [Approved 5/28/97.] 3.9 Legal Advisor to Commissioners The commission has established the position of Legal Advisor to Commissioners and shall designate an attorney to serve in that capacity. The Legal Advisor reports directly to the commission and shall assist the commission in its adjudicatory function, including in its consideration and adjudication of matters in which formal proceedings have been instituted and matters in which judges contest intended private admonishments or intended public admonishments. The Legal Advisor shall not participate in the investigation of complaints or prosecution of charges against judges. If the Legal Advisor previously participated in an investigation or adversarial proceeding in another capacity as an attorney for the commission, he or she shall not assist the commission in its deliberations or adjudication of that matter absent a written waiver by the judge. The Legal Advisor shall present to the commission proposals for disposition of matters in which formal proceedings have been instituted which have been jointly offered by trial counsel and the judge or judge’s counsel. After institution of formal proceedings, the Legal Advisor shall be responsible for requesting the appointment of special masters by the Supreme Court and shall serve as the commission’s liaison to special masters appointed in formal proceedings. The Legal Advisor shall perform such additional duties as may be assigned by the commission that do not require or cause the Legal Advisor to participate in the commission’s investigatory or prosecutorial functions. [Approved 5/28/97; amended 8/26/04.] 3.10 Records Disposition Policy At the beginning of each calendar year, the commission shall destroy all files which did not result in an advisory letter, public or private admonishment, public reproval, censure, removal or involuntary retirement, resignation or retirement with proceedings pending, or finding that a person was unfit to serve as a subordinate judicial officer as follows: (1) Files involving complaints against municipal or superior court judges dated or docketed by the commission in the thirteenth year prior to the new calendar year; and (2) Files involving complaints against appellate or Supreme Court justices dated or docketed by the commission in the nineteenth year prior to the new calendar year; and (3) Files involving complaints against subordinate judicial officers dated or docketed by the commission in the thirteenth year prior to the new calendar year. [Approved 5/28/97; amended 2/11/99.] 3.11 Biennial Adjustment of Gift Limitation Amount (1) Code of Civil Procedure section 170.9(a) limits to $250 the total value of gifts that an individual judge may accept from any single source in any calendar year. Section 170.9(d) requires that the commission adjust that amount biennially to reflect changes in the Consumer Price Index, rounded to the nearest $10. Since section 170.9(d) took effect January 1, 1995, an adjustment must be made in subsequent odd-numbered years (commencing in 1997). (2) The adjusted gift limitation amount shall apply as of January 1 of the year in which the adjustment is announced and shall remain in effect until January 1 of the next odd-numbered year. (3) The adjusted gift limitation amount shall be calculated by the commission as follows: (a) The base dollar amount ($250) shall be increased or decreased by the percentage change in the annual average California Consumer Price Index (CCPI) for all urban consumers from the base year (1994) to the end of the calendar year immediately preceding the year of adjustment. (b) Formula: The base dollar amount ($250) is multiplied by a fraction whose numerator is the annual average CCPI for the even-numbered year preceding the year of adjustment and whose denominator is the 1994 annual average CCPI (151.5). The resulting dollar amount is rounded to the nearest $10, unless that amounts ends in the numeral five with no cents, in which case it is not rounded in either direction. [Approved 5/28/97.] 3.12 Extensions of Time Unnecessary delay in commission proceedings is incompatible with the commission’s mandate to protect the public and the judiciary in general. Accordingly, extensions of time are disfavored. [Approved 8/26/04.] DIVISION IV. DISCLOSURE OF INFORMATION 4.1 Public Safety The disclosure of information concerning a threat to public safety under rule 102(f) may be made by the chairperson, the director or the designee of either. [Approved 5/28/97.] 4.2 Disclosure of Information to Prosecuting Authorities When, in the course of evaluating complaints or conducting investigations, commission staff acquires information revealing possible criminal conduct by a judge, former judge or by any other individual or entity, such information shall be brought to the attention of the commission at the earliest possible opportunity for consideration of a referral of the information to prosecuting authorities. Such a referral requires a vote of a majority of the commission members. [Approved 5/28/97.] 4.3 Disclosure of Disciplinary Records to Public Entity Upon Request/With Consent of Judge When a judge requests or consents to the release of commission records of disciplinary action under rule 102(h), the judge’s request must be made in writing to the commission office. If the judge is consenting to a request by a public entity for records of disciplinary action, the judge’s written consent and a copy of the entity’s request must be received by the commission office. Copies of any information released to the public entity shall be provided simultaneously to the judge requesting or consenting to the release of records. [Approved 5/28/97.] 4.4 Disclosure of Records of Disciplinary Action to Appointing Authorities Requests by an appointing authority for records of disciplinary action pursuant to California Constitution, article VI, section 18.5 or rule 102(i) must be made in writing to the commission office. Copies of any information provided to the appointing authority shall be provided simultaneously to the applicant judge. [Approved 5/28/97.] 4.5 Disclosure of Information Regarding Pending Proceedings to Appointing Authorities Requests by an appointing authority for information regarding pending investigations or proceedings pursuant to rule 102(j) must be made in writing to the commission office. Copies of any information provided to the appointing authority shall be provided simultaneously to the applicant judge. [Approved 5/28/97.] 4.5.5 Limitation on Disclosure to Appointing Authorities – Complaints Not Yet Reviewed by the Commission When responding to a request for information regarding pending investigations from appointing authorities (rule 102(j)), the Director-Chief Counsel shall state that the commission’s discretionary authority to release information concerning pending investigations does not encompass comment on any complaint that may have been received by the commission and has not yet been reviewed by the commission to determine whether or not to authorize an investigation or whether any such complaint exists. [Approved 3/13/02.] 4.6 Disclosure of Information to Public Entities Upon Retirement or Resignation The release of information to a public entity following a judge’s retirement or resignation, pursuant to rule 102(k), requires a vote of a majority of the commission members. The commission may, in its discretion, notify the judge that such disclosure is being made. Copies of any information being disclosed to the public entity may, in the commission’s discretion, be made available to the judge who has retired or resigned. [Approved 5/28/97; amended 1/29/03.] DIVISION V. DISABILITY RETIREMENT APPLICATIONS 5.1 Disability Applications: Confidentiality The commission shall treat as confidential any information which is presented to the commission by a judge for retirement purposes, except as follows: (1) The fact and date that an application has been filed and has been approved or rejected or remains pending may be revealed. (2) If the Judges’ Retirement System (JRS) submits a written request for information concerning a particular disability retirement application pursuant to Government Code section 75080(d), the commission shall provide to JRS any information that the commission deems necessary to a full understanding of the commission’s action, in furtherance of the statutory scheme embodied in articles 3 and 4 of the Judges’ Retirement Law. The commission shall furnish the judge in question with a copy of any documents provided to JRS. All information released under this section shall remain confidential and privileged. [Approved 5/28/97; amended 6/21/00 and 8/26/04.] 5.2 Disability Applications: Medical Consultants The commission may arrange with the University of California Medical Centers and/or other qualified medical practitioners for medical consultants to provide independent medical examinations for disability retirement applicants, to assist the commission as necessary in evaluating disability retirement applications under Government Code section 75060, making findings under Policy Declaration 5.4(4) in order to facilitate implementation of Government Code section 75080(d), and/or reevaluating the medical status of a judge retired on disability under Government Code section 75060.6. [Approved 5/28/97; amended 6/21/00.] 5.3 Reexamination of Judges Retired for Disability When approving a request for disability retirement, the commission shall decide on a case-by-case basis whether and when the judge shall be required to be reexamined pursuant to Government Code section 75060.6. Notwithstanding such decision, a judge retired for disability may be required to undergo reexamination pursuant to Government Code section 75060.6. [Approved 5/28/97.] 5.4 Procedure in Disability Retirement Matters (1) An application for disability retirement must include: a consent to disability retirement, executed by the judge, and a medical certificate of disability, executed under penalty of perjury by a licensed physician. To complete the application, the commission ordinarily will require a medical report prepared by that physician in support of certification, which shall include a statement specifying the nature of the judicial duties that cannot be efficiently discharged due to the judge’s disability, and all pertinent medical documentation. (2) When a judge submits an application for disability retirement, the commission will advise the judge if the certifying physician’s report or other medical documentation supporting the application is inadequate, and will give the judge thirty (30) days to supply more complete data. (3) Following receipt of a complete application, the commission may request review of medical reports and documents by independent consultants and/or medical examiners. One or more independent medical examinations and/or additional medical information may be requested within one hundred twenty (120) days of the first commission meeting after receipt of complete medical records. This time may be extended for good cause. If an independent medical examination is conducted, the commission will provide a copy of the examiner’s report to the judge. If the examiner concludes that the judge suffers from a disability that precludes the efficient discharge of judicial duties and is permanent or likely to become so, the examiner’s report shall include a statement specifying the nature of the judicial duties that cannot be efficiently discharged due to the disability. (4) Within sixty (60) days of the first commission meeting after receipt of all reports by consultants and medical examiners, the commission will: approve the application, or tentatively deny it, or extend its time to act on the application for good cause, “good cause” to include circumstances in which the judge’s condition cannot yet be deemed permanent or likely to become so, within the meaning of Government Code section 75060. If the commission extends its time to act, notice of such extension shall be provided to the judge. If the commission approves the application, the commission may prepare a statement of findings specifying the nature of the judicial duties that cannot be efficiently discharged due to the disability. (5) If the commission tentatively denies the application, the commission will within thirty (30) days issue a tentative decision setting forth the reasons for the denial. The tentative decision will be provided to the judge upon issuance. (6) A tentative denial becomes final thirty (30) days after issuance unless, within thirty (30) days of the tentative denial, the judge files a request to present additional evidence. Within thirty (30) days of the first commission meeting after such filing, the commission will appoint a special master authorized to take evidence, obtain additional medical information, and take any other steps the special master deems necessary to resolve the matter. (7) Within one hundred eighty (180) days after the appointment of a special master, the master will refer the matter back to the commission with a report containing proposed findings. (8) Within ninety (90) days of the first commission meeting following such referral, the commission will make a decision either approving the application and referring it to the Chief Justice or denying the application and advising the Chief Justice. [Approved 5/28/97; amended 6/21/00.] 5.5 Disability Applications: Burden of Proof Unless Government Code section 75062, 75063 or 75064 applies, a judge seeking disability retirement must establish by a preponderance of the evidence that the judge is unable to discharge efficiently the duties of judicial office by reason of mental or physical disability that is or is likely to become permanent. [Approved 5/28/97.] 5.6 Procedure in Restoration to Capacity Matters (1) An application for restoration to capacity must be in writing, executed by the judge, and be accompanied by one or more medical reports sufficient to establish that the judge is no longer mentally or physically incapacitated and is capable of discharging efficiently the duties of judicial office. (2) When a judge submits an application for restoration to capacity, the commission will advise the judge if the certifying physician’s report or other medical documentation supporting the application is inadequate, and will give the judge thirty (30) days to supply more complete data. (3) Following receipt of a complete application, the commission may request review of medical reports and documents by independent consultants and/or medical examiners. One or more independent medical examinations may be requested within one hundred twenty (120) days of the first commission meeting after receipt of complete medical records. This time may be extended for good cause. If an independent medical examination is conducted, the commission will provide a copy of the examiner’s report to the judge. (4) Within sixty (60) days of the first commission meeting after receipt of all reports by consultants and medical examiners, the commission will either approve the application or tentatively deny it. (5) If the commission tentatively denies the application, the commission will within thirty (30) days issue a tentative decision setting forth the reasons for the denial. The tentative decision will be provided to the judge upon issuance. (6) A tentative denial becomes final thirty (30) days after issuance unless, within thirty (30) days of the tentative denial, the judge files a request to present additional evidence. Within thirty (30) days of the first commission meeting after such filing, the commission will appoint a special master authorized to take evidence, obtain additional medical information, and take any other steps the special master deems necessary to resolve the matter. (7) Within one hundred eighty (180) days after the appointment of a special master, the master will refer the matter back to the commission with a report containing proposed findings. (8) Within ninety (90) days of the first commission meeting following such referral, the commission will make a decision either approving the application for restoration to capacity or denying it. [Approved 5/28/97.] DIVISION VI. CODE OF ETHICS FOR COMMISSION MEMBERS Preface As the agency charged with enforcing standards of judicial conduct in order to maintain the integrity and independence of the judiciary, the California Commission on Judicial Performance (commission) recognizes the importance of observing high standards of ethical conduct in the performance of its responsibilities. The Code of Ethics (Code) set forth in these policy declarations describes ethical standards expected of a commission member. The Code does not confer any substantive or procedural due process rights other than those provided by law, or create a separate basis for civil liability or criminal prosecution. For purposes of this Code, the judge who is the subject of a complaint, an investigation, or formal proceedings before the commission shall be referred to as the “subject judge.” 6.1 Recusal (1) A commission member shall recuse himself or herself if: (a) The member does not think he or she is able to act fairly and impartially in a matter; (b) The member or an immediate family member is the subject of the investigation; (c) The member served as a lawyer in any proceedings that are the subject of the investigation; (d) The member has a case pending before the subject judge either as a litigant or in the member’s capacity as a lawyer; (e) A lawyer with whom the member practices is involved in the complaint; (f) The member has a bias or prejudice for or against the subject judge; or (g) A reasonable person aware of the facts would entertain a substantial doubt that the member would be able to be impartial. (2) If a member determines to recuse himself or herself: (a) The member shall recuse himself or herself promptly; (b) The recused member may, but is not required to, state the reason(s) for his or her recusal; (c) The recused member shall leave the room, not comment further or otherwise participate in the commission’s consideration of the matter from which the member is recused; and (d) The recused member shall not receive further written materials on the matter from which the member is recused. 6.2 Confidentiality (1) Confidentiality shall be maintained with regard to all new, pending, and closed matters pursuant to rule 102 and other applicable legal requirements. (2) Members shall ensure that all confidential documents are secured. When the members are notified in writing (e.g., through the meeting minutes) that documents in selected matters may be discarded, members who choose to discard such documents shall ensure that they are destroyed. Members who choose to retain such documents shall ensure that they are secured. (3) A member shall not use or disclose, for any purpose unrelated to commission duties, non-public or confidential information acquired in his or her capacity as a commission member. 6.3 Ex Parte Contacts (1) A member shall not initiate, permit, or consider ex parte communications regarding a matter pending or impending before the commission, other than authorized communications with other commission members and staff. (2) If a member is contacted about a new or pending matter by a subject judge, a judge’s attorney or other agent, or a subject judge’s family or friends, the member shall not discuss the matter, but may refer the person to the Director-Chief Counsel. (3) If a member is contacted by a complainant, witness, or potential witness about a new, pending, or closed matter, the member shall not discuss the matter, but may refer the person to the Director-Chief Counsel. Correspondence from complainants about commission business shall be referred to the Director-Chief Counsel for acknowledgement and disposition. (4) After the initiation of formal proceedings, commission members shall not initiate communications with or receive communications from the Director-Chief Counsel, investigative staff, or trial counsel concerning the matter except as provided by commission rules or stipulation of all parties in the proceeding. 6.4 Judicial Election Activities (1) A member of the commission shall not publicly support or oppose a candidate for election to judicial office while a member of the commission. For purposes of this guideline, both incumbent judges and attorneys seeking election to a judicial position are considered candidates for judicial office. (2) A member of the commission shall not personally contribute funds directly to any candidate for election to judicial office while a member of the commission. If a commission member is a member of a partnership or professional corporation that contributes funds to candidates for judicial office, the commission member should not participate in such contribution decisions. If a commission member is assessed a portion of any contribution made to a candidate for judicial office by the member’s firm, the commission member’s recusal from matters involving the judge may be appropriate under some circumstances. In assessing whether to recuse, relevant factors include: whether the amount of money assessed from the commission member is de minimis (less than $10), whether the commission member’s name is included in the firm name, the number of other partners in the member’s firm, and the total number of judges in the county in which the judicial candidate was elected. (3) A member of the commission who is also a member of the board of an organization which is involved in judicial election activities should exercise caution over his or her participation in such activities. A member of the commission should not participate in the organization’s endorsements of or opposition to specific judicial candidates. Ideally, any publication of the organization’s endorsement of or opposition to specific judicial candidates would state that the commission member on the board of the organization had not participated in the endorsement or opposition. In some instances, depending on the size of the organization, its purpose and its activities, the commission member should consider resigning from the organization’s board if an appearance of conflict of interest or other impropriety cannot otherwise be avoided. 6.5 Impropriety and Appearance of Impropriety (1) A member shall not lend the prestige of his or her commission office to advance his or her private interests or the interests of others; nor shall the member convey or permit others to convey the impression that they are in a special position to influence the commission. (2) A member shall not be swayed by partisan interests, public clamor, or fear of criticism with respect to the conduct of commission business. (3) In conducting commission business, a member shall refrain from manifesting by word or action bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socio-economic status against parties, witnesses, counsel, or others. [Adopted 1/31/07; amended 12/13/07.]
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