Judges Say Bench Watchdog Should Be
on Shorter Leash
May 4, 2012
Henley, Commission on Judicial Performance director
SACRAMENTO — Tension between California's jurists
and the Commission on Judicial Performance? That's nothing
new. Fits of judicial pique against the
watchdog panel have spiked and
ebbed ever since state voters created it in 1960.
But 52 years later, frustration — one justice
described it as "palpable anger"
— with the 11-member commission has grown to such a high
level that there's now open, albeit cryptic,
talk by two judges associations of forcing changes
upon the disciplinary agency.
"There seems to be a scope or mission
creep to their work," said California
Judges Association President David Rubin, a San
Diego trial court judge. "There seem to be significant
instances of overdiscipline. And there seem at times to be
issues of discipline for
errors of law over real
substantive violations of canons of ethics."
The CJP appears to offer one of the few topics where
the CJA and the Alliance
of California Judges share
similar views. Alliance
Director Thomas Hollenhorst, a
justice on the Fourth District Court of Appeal, echoed
Rubin's critiques and added what he said is judges'
growing resentment over a pointed tone in both the
commission's advisory letters and disciplinary
"What you're hearing from judges is a concern over
what appears to be an attempt to sort of rub
judges' noses in offenses," said
Hollenhorst, who teaches judicial ethics and has served as
a special master for the commission.
Commissioners and CJP Director Victoria Henley say
they're perplexed by the claims of
overdisciplining. They note that the
numbers of admonishments, advisory letters and even ousters
ordered each year by the CJP have changed
little over the past decade. And with five judges and
lawyers serving on the panel, they add, there's
significant empathy for what it takes to run a courtroom
"Everyone is very aware of the personal effect
discipline has on judges," said seven-year commissioner
Judith McConnell, the administrative presiding justice of
the Fourth District. "The commissioners take their job
Weighing judges' criticisms and the
CJP's actions in any empirical way is difficult.
Only a handful of cases against judges are made fully
public each year. About 90 percent of the complaints the
commission receives are closed after an initial review.
Somewhere between two dozen and three dozen judges a year
receive advisory letters or private admonishments —
punishments the recipient may share with colleagues but
that are rarely, if ever, made public.
The CJP does provide sanitized
descriptions of advisory letters and private
admonishments on its website; the disciplinary summaries
offer limited factual information and no names so as not
to identify the targeted judge. Private punishment records can be
unveiled later, however, if a judge receives a public
Told about criticism that the CJP overcharges some
judges, commissioners asked for specifics. But judges were
reluctant to offer The Recorder examples of cases
where they thought a jurist was disciplined too severely,
often saying they didn't want to embarrass a colleague.
Even when a specific case was cited, however,
commissioners declined to discuss details. Case in point:
the 2006 public admonishment of Judge Paul Zellerbach. The
Riverside County judge was taken
to task for delaying the reading of a jury verdict
in a homicide case so he could attend a baseball playoff
One judge called Zellerbach's punishment "a
watershed case" that angered a number of
judges for "going too far."
Lawrence Simi, whose recent election as chair of the
commission makes him the first layperson to lead it,
declined to discuss the punishment.
"I'd just invite you to look at the facts of the
case," he said.
Simi said commissioners take their work "very, very
seriously" and rely on precedent
and "a phenomenal staff" in
determining discipline for a judge.
"Each behavior is different," Simi said. "The number
of behaviors can be different. So we look at precedents."
Judges who believe a commission-meted admonishment,
censure or removal order is too severe can petition the
state Supreme Court for review. But such challenges are
exceedingly rare, a fact that commissioners and Henley
point to as affirmation of their work. Judges, not
surprisingly, don't see things that way.
"One would hope that the commission would rather
self-correct than have people running off to the Supreme
Court to correct them," Rubin said.
For more than a year, CJA
leaders have been working on the CJP issue behind the
scenes, collecting anecdotes from
disciplined bench officers and weighing options for, as
one judge put it, "making the changes we'd like to see."
Those efforts included a meeting last summer between a
majority of CJP members and four jurists: Rubin and
then-Presiding Judges Kevin Enright of San Diego County,
Richard Loftus Jr. of Santa Clara County and Molly Bigelow
of Shasta County.
Rubin wouldn't disclose exactly what was said during
the closed-door, two-hour get-together. But he described
the conversation as free-flowing and "frank," and he said
the commissioners were attentive to the judges' concerns.
"My sense is they are aware of the discussions going
on in the branch about the CJP," he said.
More recently the Alliance of California
Judges announced that they planned to discuss their
CJP concerns during an informal meeting between the
chief justice and trial court judges in April.
That didn't happen, but Hollenhorst and other alliance
members say they're still committed to seeking changes.
Just what angry judges can do is unclear. The state
Constitution sets out the commission's mission as well as
its membership: The Supreme Court names one appellate
justice and two trial court judges; the governor picks two
attorneys; and the governor, the Senate and the Assembly
each choose two laypeople. Members serve four-year terms.
Any attempt to amend the Constitution would
be costly, laborious, potentially
politically divisive and therefore, unlikely.
Judges could try to challenge commission-created rules
governing case investigations and the agency's structure.
They could also try to play a larger role in influencing
commissioners chosen by the Supreme Court.
Rubin would not discuss the CJA's plans.
"We've been working on a strategy to address these
issues, not just for the judges' benefit, but for the
commission's as well," he said.
Hollenhorst would not rule out the Alliance of
California Judges going to the Legislature for help.
"It's not like we're shy about that," he said.
I wish to thank you for sending the above article to me.
However, I, and several others of my elk, have for years been
exposing the Commission of Judicial Performance as a watershed
for complaints against California judges. Complaints for gross
judicial misconduct has been flooding the CJP by the thousands
each year, and all we have gotten from them after the following
manor, to wit; "Thank you for contacting the Commission of
Judicial Performance regarding a complaint of misconduct of a
California judge. At out October meeting we took up you issue
which you have raised in you letter of complaint, and it was
decided that there was no matter of judicial discipline for
which this commission should take action. Therefore, we have
decided to close this matter. We thank you for contacting the
Commission on Judicial Performance.
Commission on Judicial Performance
Believe me, having many years having experience within the
judicial system dating back as far as 1981, and having filed
numerous complaints to the CJP, I have never once seen any
variation from the above. And yes, they are all stamped with
large red lettering both inside and out with the word,
"CONFIDENTIAL". But I ask, confidential from what. Not a one
letter I have ever seen from the CJP has stated anything
whatsoever. All letters also which I have seen from
others resulted in the same ridiculous words. The
CJP is a front organization.
The ridiculousness of the very existence of the CJP has even
gone so far that I have suggested publically that we should just
close down the CJP for budgetary reasons as an unfruitful waste
of the taxpayers money, and instead allow the death of
California's judges to take its natural course against these
corrupt judges. At least death is a means of which is not
subject to politics. Let the judges just fall over dead off the
bench and we can then just cart off the carcass to where is can
be properly disposed of, and in this manor the taxpayers will
save millions of dollars with no complaints against judges being
lodged, no hearings performed, no cover ups needed, and no
judicial commissioners on the payroll.
The documented track record of the CJP is dismal. Knowing
this personally, I decided to physically follow a criminal
compliant against L.A. County Superior Judge Fields. The matter
started with my filing of an affidavit of documented criminal
conduct pursuant to the Fourth Amendment with the L.A. County
Grand Jury. The L.A. County Grand Jury stated that they did not
have jurisdiction to investigate a Superior Court judge, and
that I would have have to direct my affidavit to the California
Commission on Judicial Performance.
So I personally drove up to the CJP in San Francisco with a
file box of documentation to verify my criminal affidavit. I was
met personally with a representative of the CJP who sat down
with me and told me the matter was a criminal one, and that they
were not a criminal prosecuting agency, and that I would have to
take my criminal affidavit to the State Attorney General.
So I personally traveled from San Francisco to Sacramento to
the State Attorney General's Office where I was faced with
another obstacle. The A.G. Office told me that I would have to
take my criminal complaint to the CJP in San Francisco. I
informed them that that is exactly were I had come from, and
they said I would had to come to you, the State Attorney
Due to their facing this delima, they finally dug up an A.G.
Deputy named Virgil Chapman, a Public Relations Officer. I spent
2 and 1/2 hours with Mr. Chapman, and he complimented me on my
documenting an obvious crime, and asked to photocopy the various
documents from my files, of which he did. He indeed told me that
because of the seriousness of this matter, their office was
going to expedite this matter.
I thought perhaps I had performed my mission regarding this
criminal conduct of Judge Fields, but I was wrong. Politics
kicked in, and I was thereafter prevented any further
communications with Mr. Virgil Chapman, and I was again told
that I should take this criminal matter to the CJP. I was
experiencing a cover up and facing a runaround.
Instead of going back to the CJP, I physically traveled to
Sacramento again, but this time to the Governor's Office about
this criminal cover up by all involved where I met with Sandra
Micelle, the Governors attorney. When I explained to her the
cover up, she stated that the Governor's Office has no
jurisdiction because the State Attorney General is elected to
office by the voters just like the Governor. I then showed her
the California State Constitution, Article V, Sec. 13, "Subject
to the powers and duties of the Governor, the Attorney General
shall be the chief law officer of the State," and I stated to
her that the State Attorney General is the bellboy for the
Governor, and is constitutionally obligated to perform whatever
duty was required of him by the Governor. Her eyes got big and I
could tell that I was informing her of a duty she had never saw
or realized before, and she then said, "How can I help you, Mr.
We explained what was going on, and she stated that she
understood my perplexity and why I came to the Governor's
Office. However, after my departure from the Governor's Office,
I was no longer allowed to communicate with Sandra on this
matter. It was like this criminal affidavit against L.A.
Superior Court Judge Fields was some kind of a toxic plague that
no one wanted to deal with, and there existed in California no
such thing as a remedy when judges commit crimes. A Deputy
Attorney General even stated to me privately in the elevator,
"Mr. Branson, you want us to go after California judges. We
cannot do that. We have a conflict of interest. We are the
judge's defense attorneys. When you sue them, we appear in their
defense. Further, since we are attorneys for the State of
California, we bring suits before these judges. We want them to
rule in our favor. So there is no way we can get involved in
what you are asking of us." At least I was now privately being
informed as to the truth of the problem. There truly exists no
remedy against wayward judges in California!
I thereafter proceeded to the U.S. Attorney's Office seeking
a remedy, and then to the U.S. Department of Justice, who
forwarded my matter on to the FBI. The FBI sat on this criminal
complaint for almost a year after which they wrote me an said
the criminal statute of limitations had run, and so that they
were forced to close this matter.
So much for judicial discipline. Prior to 1960,
judicial complaints were investigated by Grand Juries. But
then in 1960 the CJP was created as a sandbag for judicial
complaints to be investigated by a panel mostly made up of
judges covering for judges. The entire system is now designed to
cover up for judicial complaints, and the only issues acted upon
are those coming to media light in which the CJP must save face.
I have learned that no judge gets disciplined for wrong doing,
rather, judges only get disciplined for embarrassing the
judicial system. When that happens, the judicial system must cut
it loses by sacrificing one of their own to make it look like
the CJP is doing a fine job.
So you can see why I find your article you have just sent me
raising the hair on the back of my neck, as it too is nothing
but the furtherance of deceptive fraud on the public. We are now
to believe the lie that the California judges are complaining
that the CJP is taking their discipline of judges too far, and
overcharging the judges. This story well serves the cover up for
the CJP. What this story really tells me is that exposure of the
CJP by the many of us as to what the CJP really is, is
disturbing starting to upset them.
In as much as I use to have inside access to the L.A. County
District Attorney's Office, I can tell you that two district
attorney deputies contacted me about the criminal conduct of two
different L.A. County Superior judges of which they were seeking
to criminally prosecute, and they were being defeated in their
prosecution of these judges because these judges were
successfully arguing they were covered by judicial immunity.
Now, if you know anything about a judicial immunity defense, it
must acknowledge the offense, to wit, "Yes, I committed the
felony which you accuse me of, but I am a judge covered by
judicial immunity, therefore, there is not a thing you can do
about my crime!"
Below is my proposed solution to the many numerous
complaints of judicial misconduct, and of crimes committed by
judges. Please read it, and give me your comments. Thank you,
Shawn Mooney, for taking your time to read my response to what
you have sent me.
Judicial Accountability Initiative Law Founder
* * *
Accountability Initiative Law (J.A.I.L.)
(California Initiative - Ver.
Preamble. We, the People of
California, find that the doctrine of judicial immunity has been
greatly abused; that when judges abuse their power, the People are
obliged - it is their duty - to correct that injury, for the
benefit of themselves and their posterity. In order to ensure
judicial accountability and domestic tranquility, we hereby amend
our Constitution by adding the following provisions as Sec. 32 to
Article I, which shall be known as "The J.A.I.L. Amendment."
1. Definitions. To avoid
absurd results, words shall be given their plain, ordinary and
literal meanings; and where appropriate, the singular shall
include the plural and vice-versa. For purposes of this Amendment,
the following terms shall mean:
A judicial officer hearing and adjudicating legal
actions and proceedings within the judicial branch of
government (to include arbitrator, mediator, or a
private judge, any of whom is assigned by a court to
hear involuntary proceedings). This definition shall not
be construed to mean trial juror, prosecutor, or any
allegations: Statements essential to the claim or
defense presented in a pleading filed in court.
Any unlawful act that impedes the lawful conclusion of a case,
to include unreasonable delay and willful rendering of an
unlawful or void judgment or order.
litigant: A party holding a corporate charter, as
distinguished from a business license.
A Special Grand Juror.
- Strike: An adverse immunity decision or a
criminal conviction against a judge.
2. Exclusions of immunity. Notwithstanding
common law or any other provision to the contrary, no immunities
shielding a judge from frivolous and harassing actions shall be
construed to extend to any deliberate violation of law, fraud or
conspiracy, intentional violation of due process of law,
deliberate disregard of material allegations, judicial acts
without jurisdiction, blocking of a lawful conclusion of a case,
or any deliberate violation of the Constitutions of California or
the United States. The foregoing judicial misconduct shall not be
construed to mean court decisions made within the authorized
capacity of a judge.
3. Special Grand Juries.
For the purpose of returning power to the People and ensuring the
integrity of the judiciary, there are hereby created within this
State three twenty-five member Special Grand Juries with statewide
jurisdiction having inherent power to judge both law and fact. This body shall exist independent of statutes
governing county Grand Juries. Their
responsibility shall be limited to determining, based on the
evidence shown on the record, whether any civil lawsuit against a
judge would be frivolous or harassing, or fall within the
exclusions of immunity as set forth in paragraph 2, or whether
there is probable cause of criminal conduct by the judge against
whom a petition/complaint is brought before the Special Grand
4. Professional Counsel.
Each Special Grand Jury shall have exclusive power to retain
non-governmental advisors, special prosecutors, and investigators,
as needed, who shall serve no longer than one year, and thereafter
shall be ineligible to serve; except a special prosecutor may be
retained to prosecute to conclusion ongoing cases through all
appeals and any complaints to the Special Grand Jury. Each Special
Grand Jury may hire clerical staff, as needed, without time
5. Establishment of Special
Grand Jury Facilities. Within ninety days following the
passage of this Amendment, the Legislature shall provide a
suitable facility for each Special Grand Jury. Each facility shall
be reasonably placed proportionately according to population
throughout the State, but no facility shall be located within a
mile of any judicial body.
6. Annual Funding. The
Legislature shall cause to be deducted two and nine-tenths percent
from the gross judicial salaries of all judges, which amount shall
be deposited regularly into an exclusive trust account created by
this Amendment in paragraph 10 for its operational expenses,
together with filing fees under paragraph 7, surcharges under
paragraph 8, forfeited benefits of disciplined judges under
paragraph 18, and fines, if any, imposed by sentencing under
7. Filing Fees. Attorneys
representing a party filing a civil petition or response before
the Special Grand Jury shall, at the time of filing, pay a fee
equal to the filing fee due in a civil appeal to the State Supreme
Court. Individuals filing a civil petition or response on their
own behalf before the Special Grand Jury as a matter of right
shall, at the time of filing, post a fee of fifty dollars, or file
a declaration, which shall remain confidential, stating that they
are impoverished and unable to pay and/or object to such fee,
pursuant to First Amendment right of redress.
8. Surcharges. Should
this Amendment lack sufficient funding through its fines, fees,
and forfeitures (including deductions in paragraph 6), the
Legislature shall impose appropriate surcharges upon the civil
court filing fees of corporate litigants as necessary to
supplement the funding of this Amendment so as not to be
chargeable to the public.
9. Compensation of Jurors. Each
Juror shall receive a salary commensurate to that of a Superior
Court judge, prorated according to the number of days actually
served by the Juror.
10. Annual Budget. The
Special Grand Juries shall have an annual operational budget
commensurate to double the combined salaries of the seventy-five
Jurors serving full time, which sum shall be initially deposited
by the Legislature into an exclusive trust account to be annually
administered by the State Treasurer. Should the trust balance,
within any budget year, drop to less than an amount equivalent to
the annual gross salaries of fifty Superior
Court judges, the State Treasurer shall so notify the
Legislature which shall replenish the account, prorated based on
the actual average expenditures during the budget year. Should the
trust balance in any subsequent year exceed the annual operational
budget at the beginning of a new budget year, the State Treasurer
shall transfer such excess to the state treasury. Except for the
initial year, no expenses in paragraphs 6, 7, 9 and 10 of this
Amendment shall be chargeable to the public.
11. Jurisdiction. Each
Special Grand Jury shall have exclusive power to appoint a
foreperson, establish rules assuring their attendance, to provide
internal discipline, and to remove any of its members on grounds
of misconduct. The Special Grand Jury shall immediately assign a
docket number to each petition/complaint brought before it, unless
such case is transferred to another Special Grand Jury to achieve
caseload balance. A transfer shall not prejudice a docketing
deadline. The Special Grand Jury first docketing a complaint shall
have sole jurisdiction of the case. Except as provided in
paragraphs 17 and 22, no petition of misconduct shall be
considered by any Special Grand Jury unless the petitioner shall
have first attempted to exhaust all judicial remedies available in
this State within the immediately preceding six-month period.
(Such six-month period, however, shall not commence in petitions
of prior fraud or blocking of a lawful conclusion until after the
date the Special Grand Juries become functional. This provision
applies remedially and retroactively.) Should the petitioner opt
to proceed to the United States Supreme Court, such six-month
period shall commence upon the disposition by that Court.
12. Qualifications of Jurors.
A Juror shall have attained to the age of thirty years, and have
been nine years a citizen of the United States, and have been an
inhabitant of California for two years immediately prior to having
his/her name drawn. Those not eligible for Special Grand Jury
service shall include elected and appointed officials, members of
the State Bar, judges (active or retired), judicial, prosecutorial
and law enforcement personnel, without other exclusion except
previous adjudication of mental incapacity, imprisonment,
or parole from a conviction of a felonious act.
13. Selection of Jurors. The
Jurors shall serve without compulsion and their names shall be
publicly drawn at random by the Secretary of State from the list
of registered voters and any citizen submitting his/her name to
the Secretary of State for such drawing. The initial Special Grand
Juries shall be established within thirty days after the
fulfillment of the requirements of paragraph 5.
14. Service of Jurors. Excluding
the establishment of the initial Special Grand Juries, each Juror
shall serve one year. No Juror shall serve more than once. On the
first day of each month, two Jurors shall be rotated off each
Special Grand Jury and two new Jurors seated, except in January it
shall be three. Vacancies shall be filled on the first of the
following month in addition to the Jurors regularly rotated, and
the Juror drawn to fill a vacancy shall complete only the
remainder of the term of the Juror replaced.
15. Procedures. The
Special Grand Jury shall serve a copy of the filed petition upon
the subject judge and notice to the petitioner of such service.
The judge shall have twenty days to serve and file a response. The
petitioner shall have fifteen days to reply to the judge's
response. (Upon timely request, the Special Grand Jury may provide
for extensions of time upon the showing of good cause.) In
criminal matters, the Special Grand Jury shall have power to
subpoena witnesses, documents, and other tangible evidence, and to
examine witnesses under oath. Each Special Grand Jury shall
determine the causes properly before it with their reasoned
findings in writing within one hundred twenty calendar days,
serving on all parties their determination as to whether or not
immunity shall apply as a defense to any civil action that may
thereafter be pursued against the judge. A rehearing may be
requested of the Special Grand Jury within fifteen days with
service upon the opposition. Fifteen days shall be allowed to
reply thereto. Thereafter, the Special Grand Jury shall render
final determination in writing within thirty days. All allegations
in the petition shall be liberally construed. The Jurors shall
keep in mind, in making their determinations, that they are
entrusted by the People of this State with the duty of restoring
judicial accountability and the perception of justice. The
standard of authority by which the Jurors shall be guided in
making their determinations shall not be opinions of courts, but
shall be the Constitutions of California and of the United States
and laws made in pursuance thereof. The Jurors shall avoid all
influence by judicial and government entities. The statute of
limitations on any civil suit brought pursuant to this Amendment
against a judge shall not commence until a final determination by
the Special Grand Jury. Special Grand Jury files shall always
remain public record following their final determination. A
majority of thirteen Jurors shall determine any matter.
16. Indictment. Should
the Special Grand Jury also find probable cause of criminal
conduct on the part of any judge against whom a petition is
docketed, it shall have the power to indict such judge. The
Special Grand Jury shall, without voir dire beyond
personal impartiality, relationship, or lack of fluency in
English, cause to be impaneled twelve
special trial jurors, plus alternates, which trial jurors shall be
instructed that they have power to judge both law and fact. The
Special Grand Jury shall also select a non-governmental special
prosecutor and a judge with no more than four years on the bench
from a county other than that of the defendant judge, having
jurisdiction solely to maintain a fair and orderly proceeding. The
trial jury shall be selected from the same pool of jury candidates
as any regular jury. The special prosecutor shall thereafter
prosecute the cause to a conclusion, having all the powers of any
other prosecutor within this State. Upon conviction, sentencing
shall be the province of the special trial jury, and not that of
the selected judge. Such term of sentence shall conform to
17. Criminal Procedures. In
addition to any other provisions of this Amendment, a complaint
for criminal conduct against a judge may be brought directly to
the Special Grand Jury, when all of the following conditions have
been met: (1) an affidavit or declaration of criminal conduct has
been lodged with the appropriate prosecutorial entity within
ninety days of the commission of the alleged crime; (2) the
prosecutor declines to prosecute, or one hundred twenty days have
passed following the lodging of such affidavit or declaration, and
prosecution has not commenced; (3) an
indictment, if sought, has not been specifically declined on the
merits by a county Grand Jury; and (4) the criminal
statute of limitations has not run. Any criminal conviction
(including a plea bargain) under any judicial process shall
constitute a strike.
18. Removal. Whenever any
judge has received three strikes, the judge shall be permanently
removed from office, and thereafter shall not serve in any State
judicial office. Judicial retirement for such removed judge shall
not exceed one-half of the benefits to which such judge would have
otherwise been entitled. Retirement shall not avert third-strike
19. Public Indemnification. No
judge against whom a petition/complaint is brought, or sued
civilly by a complainant pursuant to this Amendment, shall be
defended at public expense or by any elected or appointed public
counsel, nor shall any judge be reimbursed from public funds for
any losses sustained under this Amendment.
20. Enforcement. No
person exercising strict enforcement of the findings of a Special
Grand Jury shall be held liable civilly, criminally, or in
21. Redress. The
provisions of this Amendment are in addition to other redress that
may exist and are not mutually exclusive.
22. Challenges. No judge
under the jurisdiction of the Special Grand Jury, or potentially
affected by the outcome of a challenge hereto, shall have any
jurisdiction to sit in judgment of such challenge. Such pretended
adjudication shall be null and void for all purposes and a
complaint for such misconduct may be brought at any time, without
charge, before the Special Grand Jury by class action, or by any
adversely affected person.
23. Preeminence. Preeminence
shall be given to this Amendment in any case of conflicts with
statute, case law, common law, or constitutional provision. The
foreperson of each Special Grand Jury shall read, or cause to be
read, this Amendment to the respective Jurors semi-annually during
the first week of business in January and July. Should any part of
this Amendment be determined unconstitutional, the remainder shall
remain in full force and effect as though no challenge thereto
Library of Congress 9/12/03
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