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Re: Victoria B. Henley - CJP

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  • Ron Branson
    Shawn Mooney wrote: Judges Say Bench Watchdog Should Be on Shorter Leash By Cheryl Miller Contact All Articles The Recorder May 4, 2012 Victoria Henley,
    Message 1 of 1 , May 21, 2012

      Shawn Mooney wrote:

      Judges Say Bench Watchdog Should Be on Shorter Leash

      By Cheryl MillerContactAll Articles

      The Recorder

      May 4, 2012

      Victoria Henley, Commission
on Judicial Performance director
      • Victoria Henley, Commission on Judicial Performance director
        Image: Jason Doiy/The Recorder

      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 proceedings.

      "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 today.

      "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 very seriously."

      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 chastisement.

      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 game.

      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.


      Shawn Mooney:

      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 General's Office.

      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. Branson?"

      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. 

      Ron Branson
      Judicial Accountability Initiative Law Founder

      *   *   *

      Judicial Accountability Initiative Law (J.A.I.L.)

      (California Initiative - Ver. 2-7-07)

      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:

      1. Judge: 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 administrative official.
      2. Material allegations: Statements essential to the claim or defense presented in a pleading filed in court.
      3. Blocking: 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.
      4. Corporate litigant: A party holding a corporate charter, as distinguished from a business license.
      5. Juror: A Special Grand Juror.
      6. 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 Jury.

      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 limitation.

      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 paragraph 16.

      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 statutory provisions.

      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 penalties.

      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 contempt.

      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 existed.

      Copyrighted Library of Congress 9/12/03

      *** END ***

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