- California Constitution
The Commission on Judicial Performance was established by legislative constitutional amendment approved by the voters in November 1960. The commission’s authority is set forth in article VI, sections 8, 18, 18.1 and 18.5 of the California Constitution. In 1966, 1976, 1988, 1994, 1998 and most recently in 2002, the Constitution was amended to change various aspects of the commission’s work.
- Rules of the Commission on Judicial Performance
Article VI, section 18(i) of the Constitution authorizes the commission to make rules for conducting investigations and formal proceedings. The Rules of the Commission on Judicial Performance, rules 101 through 138, were adopted by the commission on October 24, 1996, and took effect December 1, 1996. The rules have been amended periodically thereafter.
- Policy Declarations of the Commission on Judicial Performance
The Policy Declarations of the Commission on Judicial Performance detail the commission’s internal procedures and existing policies. A Code of Ethics for Commission Members is set forth in Division VI of the policy declarations.
- Government Code
The commission is subject to Government Code sections 68701 through 68756. Additionally, the Government Code controls the commission’s handling of judges’ disability retirement applications, pursuant to sections 75060 through 75064 and sections 75560 through 75564.
- Code of Civil Procedure
The commission is responsible for enforcing the restrictions on judges’ receipt of gifts and honoraria as set forth in Code of Civil Procedure section 170.9. On February 1, 2017, the commission adopted the gift limitation amount of $420 for purposes of CCP section 170.9.
- Code of Judicial Ethics
The Code of Judicial Ethics, adopted by the California Supreme Court, establishes standards for ethical conduct for judges on and off the bench and for candidates for judicial office. All members of the judiciary must comply with the Code. As stated in the Preamble to the Code: “Compliance is required to preserve the integrity of the bench and to ensure the confidence of the public.”
- California Rules of Court
Rules 9.60, 9.61, 10.603, 10.703 and 10.1016 of the California Rules of Court pertain to the Commission on Judicial Performance.
Recent Changes In The Law
Commission Rules and Policy Declarations
As part of the commission’s 2016 rules review, following consideration of the comments and responses to comments, at its meeting on June 28, 2017, the commission has adopted amendments to rules 116.5 (Negotiated Settlement During Preliminary Investigation), 120(b) (Disqualification upon notice of formal proceedings), 122(g)(2)(a) (Discovery Depositions), and 126(d) (Appointment of Conservator). A public report including the full text of the amendments, the reasons for the amendments, and a discussion of the public comments and rule proposals submitted during the 2016 rules review can be found here.
At its meeting on January 31, 2018, following consideration of public comments, the commission amended rule 117 (Records Disposition Program). A public report including the full text of the amendment, the reasons for the amendments, and a discussion of the public comments on the amendment can be found here.
In 2016, the commission implemented a pilot mentoring program in Northern California. Judges who receive complaints of misconduct arising from allegations of poor demeanor may agree to participate in confidential mentoring for up to two years to redress demeanor problems. Mentor judges were trained from a curriculum designed by judges, ethicists and a counselor. In conjunction with implementation of the pilot program, effective June 29, 2016, and operative until June 28, 2018, the commission adopted interim amendment rule 102(q), which provides for disclosure of information to a mentor judge as part of the mentoring program.
Commission Policy Declarations
In June 2017, the commission adopted new policy declaration 1.1.5 stating that if a matter is closed by the commission at initial review because a complaint does not state sufficient facts or information to establish a prima facie case of misconduct, the complainant shall be informed that if further new information is provided, it will be reviewed and, if sufficient, the complaint will be reconsidered.
In March 2017, the commission amended policy declaration 1.8 [Cases Removed From Active Calendar] to provide that a complainant may be notified when a matter is deferred for consideration and removed from the active calendar, and that matters removed from the active calendar will be placed on the commission’s calendar at every meeting, subject to active consideration at the discretion of the commission.
In March 2017, the commission amended the procedures for disability applications in policy declarations 5.4 and 5.5.
In February 2017, the commission adopted policy declaration 1.6.5, which allows for the chairperson or acting chairperson to authorize staff to send a supplemental letter to a judge who in response to a staff inquiry or preliminary investigation letter fails to respond to an allegation in the letter or reveals additional instances or a variation of the same conduct that is the subject of the commission’s investigation.
Code of Judicial Ethics
Effective December 1, 2016, the Supreme Court of California amended canons 3E and 5B of the Code of Judicial Ethics. Advisory committee commentary was added to canon 3E(1), which interprets the term “proceeding” to include prefiling judicial determinations. The amendment to canon 3E(5)(a) and the addition of canon 3E(6), along with commentary, extend similar disqualification provisions to appellate justices as those applying to trial court judges. Canon 5B amendments include changing terminology regarding misleading statements in judicial campaigns and in the judicial appointment process.
Rules of Court
No amendments were made to the Rules of Court pertaining to the commission in 2016.
Code of Civil Procedure & Government Code
In 2017, the Legislature amended Code of Civil Procedure section 2093 and Government Code section 1225, which permit former judges and justices to administer oaths and affirmations, as long as they satisfy the conditions set forth in Code of Civil Procedure section 2093. Under the amendments, in order to obtain a certification allowing them to administer oaths and affirmations, all former judges and justices, who satisfy the conditions of Code of Civil Procedure section 2093, may request a certification from the commission, but are no longer required to submit a medical certification along with the application. The commission may require a judge to obtain a medical certification if, (1) at the time of the judge’s retirement or resignation, the commission has evidence of cognitive impairment in a disability application or an investigation file, or (2) the judge previously received a two-year certification from the commission. If the applicant’s medical certification indicates that he or she has a medical condition that could impair his or her ability to administer oaths and affirmations, but does not do so at the time of the submission of the medical certification, the commission is required to issue a certification to administer oaths and affirmations valid for only two years from date of issuance. The changes affect judges and justices who were certified before January 1, 2018, and all judges and justices who apply for certification after December 31, 2017.
On February 1, 2017, the commission adopted a new gift limitation amount of $420, for purposes of Code of Civil Procedure section 170.9.