The Commission
on Judicial Performance released amendments to its rules of procedure,
including two proposals that were opposed by the California Judges Association.
The commission
amended its rules 110 and 111 to incorporate existing practice that provides
judges with limited disclosure of complaints. Judges are told in general terms
what they are accused of, but do not get to see the actual complaints or learn
the identities of the complainants at the investigative stage of the process. CJA had urged
the commission to adopt broader early discovery.
The
association’s proposal, made late last year, would have required the commission
to provide judges with the names of witnesses and copies of investigative
materials before the judge responds. But the commission, in an explanation
attached to yesterday’s report, reiterated what it said when it rejected the
proposal in January.
The commission
said the proposed early discovery—current rules require that such disclosure be
made only after formal proceeds are commenced—would have a chilling effect on
complainants. It noted that the only state that allows such early discovery is
Alabama, and that the number of complaints filed in that state dropped
significantly after the rule was introduced a decade ago.
The commission
acknowledged that a few states besides Alabama do provide accused
judges with either the complaint or the identity of the complainant before the
judge is required to respond to the charges. But none of those states provide
the full discovery that CJA proposes, the commission said.
The commission
also noted that it had received comments in support of the proposed rule from
court employee unions and law professors who said the proposal would correctly
balance judges’ rights against the need to protect whistleblowers. The CJP also
cited Supreme Court rulings upholding its procedures as consistent with due
process.
The commission
also approved a new rule 111.4 adopting the standard for discipline
based on legal error set forth in Oberholzer v. CJP(1999) 20
Cal.4th 371, which held that a judge could not be disciplined merely because
the commission believes he erroneously interpreted the law. The standard permits
discipline when legal error is accompanied by bad faith, abuse of authority,
disregard for fundamental rights, intentional disregard of the law, or a purpose
other than the faithful discharge of judicial duty—the so-called
“Oberholzer plus factors.”
CJA argued in
its comments that the amendment fails to make clear that a judge cannot be
disciplined for pure legal error.
“Along with the
increase in the number of advisory letters issued by the commission, there has
been a corresponding increase in complaints from our membership that the
commission is initiating staff inquiries and preliminary investigations, and
issuing advisory letters for legal error alone,” CJA President Alan Hardcastle
wrote to the commission.”
CJA proposed
that the rule permit issuance of an advisory or “stinger” letter based on legal
error only if there was “clear and convincing extrinsic evidence that the judge
committed that act as a result of” one of the “plus factors.”
The CJP denied
it had issued stinger letters under circumstances outside the Oberholzer standard and cited several cases in which judges were
disciplined—appropriately, it said—for conduct that would fall outside the CJA’s
parameters.
The CJP said in
its decision:
“At some point,
a judge’s obliviousness to the consequences of the means to a given end may
override, as a matter of law, a judge’s statement of subjective good
intent.”
Full Article and Source:
CJP Adopts Rules Amendments Opposed by CJA
CJP Adopts Rules Amendments Opposed by CJA