The Commission on Judicial Performance (CJP) is an independent agency responsible for investigating judicial misconduct and disciplining state judges. It has jurisdiction over former judges for conduct prior to their leaving the bench and has shared authority with local courts over court commissioners and referees. The commission’s jurisdiction includes all judges of California's superior courts and the justices of the Court of Appeal and Supreme Court. But it does not have authority over federal judges, judges pro tem or private judges.
The Commission on Judicial Qualifications was established by the voters in November 1960 when they approved Proposition 10, which amended the state Constitution. The “Administration of Justice” amendment created a nine-member body comprised of five judges, two lawyers and two citizens to investigate allegations of judicial misconduct.
It also provided for the removal of judges from office by the state Supreme Court based on recommendations by the commission. Proceedings before the commission would be confidential until a recommendation was made by the commission to the Supreme Court for the judge’s removal.
The commission was amended five times, over the years, evolving from a purely investigative body to one with strong sanction powers. Its jurisdiction expanded, its operations became more transparent and its judicial composition gave way to a public-member majority.
Proposition 1a, passed by the voters in November 1966, tweaked the amendment by simplifying some of the language and adding censure as a sanction that could be imposed by the Supreme Court in addition to removal from office.
In November 1976, California voters passed Proposition 7, changing the panel’s name to the Commission on Judicial Performance. The proposition also added provisions for the removal or retirement of a Supreme Court justice. It added private admonishment as a sanction to be imposed by the commission, rather than the Supreme Court, and clarified a reference to “habitual intemperance” as grounds for discipline to be “the use of intoxicants or drugs.”
Voters made more changes in 1988. Proposition 92 gave the commission authority to open hearings at the request of the respondent judge or when the charges involved moral turpitude, corruption or dishonesty. The amendment also provided for public statements by the commission. Public reproval was added as an intermediate sanction between censure by the Supreme Court and private admonishment by the commission.
In 1994, Proposition 190 added more than a dozen significant changes. Open hearings were mandated in all cases involving formal charges. The commission replaced the Supreme Court as the authority for censure and removal determinations and took over the authority for promulgating its governing rules from the Judicial Council. Commission membership increased to 11 and its composition changed to three judges, two lawyers, and six citizens.
Proposition 221 in 1998 gave the commission shared authority with the superior courts for the investigation and discipline of subordinate judicial officers.
California was the first state in the country to set up a permanent body to address judicial misconduct. Today there are comparable bodies in all fifty states and in the District of Columbia, many of which were initially modeled after "the California Plan," now known as the Commission on Judicial Performance.
Mandate & Legislative History (CJP website)
The Commission on Judicial Performance is composed of 11 members: three judges appointed by the Supreme Court; two attorneys appointed by the governor; and six lay citizens, two of which are appointed by the governor, two of which are appointed by the Senate Committee on Rules, and two who are appointed by the Speaker of the Assembly. Members are appointed to four-year terms and may serve two terms. They do not receive a salary.
There were 1,774 judgeships and 392 court commissioners and referees within the commission's jurisdiction as of 2010. In what was a typical year statistically, the commission disposed of 1,133 cases. It dismissed 988 cases after an initial review; closed 96 cases without disciplinary action; and issued 31 advisory letters, eight private admonishments, four public admonishments and three public censures. Three judges retired or resigned with proceedings pending.
Since its inception in 1960, the commission has called for nine removals, 28 public censures, 17 public reprovals and 66 public admonishments.
Prior to 1995, the state Supreme Court had the authority to censure or remove judges from office and, upon the recommendation of the commission, called for 15 removals and 20 censures.
The Process
The California Commission on Judicial Performance receives about 1,000 complaints a year. Anyone can file a complaint, including the public, lawyers, judges, court staff and litigants.
Ninety percent of the complaints, however, allege some form of legal error rather than judicial misconduct that is more appropriately handled through the appellate court process. They are dismissed by the staff. The remaining 10% are investigated by the commission, which meets seven times a year.
Complaints are confidential and can be made anonymously.
Judicial misconduct involves violations of the Code of Judicial Ethics. Examples can include intemperate courtroom behavior, bias, sexual harassment, conflict of interest, public comment about a pending case or delay in performing judicial duties. It can also include off-the-bench conduct such as substance abuse, improper political activities or driving under the influence of alcohol. About 25 types of misconduct have been identified by the commission.
Legal error is not misconduct.
Once the commission determines that a complaint falls under its jurisdiction, the staff opens an investigation. If the complaint has merit, the judge is asked to comment. If the investigation determines “relatively minor” misconduct, the commission may send the judge a confidential letter of disapproval. If the misdeed is significant, the judge may get a confidential letter of admonishment.
It is only when a matter is considered serious that the commission may elect to go public with an admonishment or censure. The commission can remove a judge from office after a public hearing.
Once all commission procedures are completed, the judge can appeal the decision to the state Supreme Court.
Who Is Disciplined?
Over the course of two decades leading up to 2010, studies indicate that judges on small courts are more likely to be disciplined than those on large courts; complaints about male and female judges are equal but female judges are disciplined less often; elected judges are disciplined more often than appointed judges; age and judicial experience have no bearing; and judges who have received prior discipline are more likely to receive discipline.
From 2000-2009, “demeanor/decorum” was the cause of 19.9% of those disciplined. Around 9.7% were found to have abused authority on-bench, 9.4% showed bias, and 9.3% failed to ensure rights of courtroom participants.
Judicial Code of Ethics (pdf)
Organization of the Commission (CJP website)
Summary of Discipline Statistics, 1990-2009 (by Russell Ganzi, Erica Kang, and David Rizk, Stanford University, Graduate Policy Program) (pdf)
California Constitution (pdf)
Case Statistics (CJP website)
2010 Annual Report (CJP website) (pdf)
Public Discipline & Decisions 1961–Present (CJP website)
All of the commission’s funding, $4.2 million in 2011-12, was allocated from the state General Fund. Seventy-seven percent of that is spent on salaries and benefits for its staff. The rest is spent on operating expenses and equipment.
The budget appropriation the year before was roughly the same as 2011-12. In that fiscal year, approximately 41% of the commission's budget went to support its investigation functions, 20% was for administration/general office, 20% for facilities, 7% as legal advisor, 6% for formal proceedings and 6% for general operating expenses.
In 2003-2004, and again in the 2008-2009, the commission's budget was reduced by 10%—a 20% reduction in the span of five years. None of the funding has been restored.
The members of the commission receive no salaries. Because the performance of the commission's core functions is dependent upon the services of its legal and support staff, the commission's budget is largely allocated to personnel expenses. Since 2003-2004, the commission has had to maintain reduced staffing levels in order to achieve the required savings.
The commission has 27 authorized staff positions: 16 attorneys and 11 support staff. Several positions have been kept vacant and other positions have been filled part-time as a cost-saving measure. This resulted was an overall staffing reduction of approximately 26% in 2010.
The Commission’s Budget (CJP website)
3-Year Budget (pdf)
Commission Investigates the Supreme Court on Television
Governor Jerry Brown appointed Rose E. Bird as chief justice of the Supreme Court in 1977 and they both immediately came under fire for her lack of judicial experience, her liberal inclinations and her personal style. She was also the first female member of the high court.
The court itself had been criticized during the previous decade for a host of reasons. Reagan had appointed a former aide, William P. Clark, who lacked a law degree. Senile Justice Marshall McComb had to be pressured into retirement in 1977 by the Commission on Judicial Performance. And the court was criticized for a series of decisions construed as being “soft on crime.”
California Supreme Court justices are regularly confirmed by voters, and Bird was narrowly returned to office in a 1978 election. But a controversy erupted on election day over allegations that the court had withheld release of a controversial decision, People v. Tanner, to enhance the re-election of four justices, including Bird.
Tanner, on a 4-3 vote, nullified a law-and-order measure making prison terms mandatory for people convicted of using guns during the commission of a crime. While three justices ruled that the “use a gun, go to prison” law was constitutional but inapplicable in the case, Bird had written that the law was applicable but unconstitutional.
The court eventually revisited the case and a reversal of position by Justice Stanley Mosk upheld the law. But the initial court decision set off a firestorm.
People called for Bird’s impeachment, a legislative inquiry, a grand jury investigation or an open probe by the commission.
What they got was a televised spectacle that mesmerized the state after Justice Bird ordered the commission to conduct a hearing. The panel, led by its chairman Judge Bertram D. Janes, sorted through private communications among the staff and justices, laying bare the inner workings of the court. Accusations about the political motivations of the court were argued as well as the damage done to the judicial system by exposing the confidential deliberations and thought processes of judges to public scrutiny and censure.
The public got more than a glimpse of the human beings beneath the black robes. They saw the pragmatism, nit-picking, crusading and wheeling and dealing along with the bickering, vindictiveness and suspicion among the court members.
In many ways, the commission hearing was conducted like a criminal trial. Lawyers objected to evidence, privileges were invoked, justices were cross-examined. In other ways it wasn’t. The commission declared it wasn’t bound by the rules of evidence and, in the words of Justice Mosk, “permitted reports on corridor gossip among law clerks, inquiries into intent, motivation, and speculation, and it welcomed the rankest type of hearsay as well as multiple hearsay evidence.”
Justices were asked to comment on why their secretaries didn’t receive carpeting and why one justice wouldn’t speak to another justice without a note-taking clerk present.
The media and the public scrutinized every twist and turn over a five-week period, judging the judges on their intelligence, knowledge and veracity.
Justice Bird worried afterward about the damage done to the court when she said, “we have thrown very delicate china into a laundermat.”
Justice Mosk refused to testify in public and petitioned the Superior Court to quash the commission’s subpoena. He argued that the public hearing violated the state Constitution. Justice Mosk lost, but won in the appellate court. The hearing was closed. But the Mosk case was appealed to the Supreme Court, an awkward situation that became even more awkward when one of the justices under investigation, Justice Frank Newman, refused to disqualify himself from the case. So the rest of the pro tempore court gave him the boot.
Finally, the public hearing was ordered permanently behind closed doors. On November 5, 1979, almost one year after the initial debate began, it ended. The commission issued a one-paragraph decision that the case was closed and no formal charges would be brought against any justices.
The commission also issued a two-page report that indicated it was being forced by the pro tempore court to remain silent about its decision and that it would seek a constitutional amendment to expand its disciplinary power and give it more flexibility in making reports public.
It wasn’t until 1988 that voters approved Proposition 92, which gave the commission authority to open hearings at the request of the respondent judge or when the charges involved moral turpitude, corruption or dishonesty. The amendment also provided for public statements by the commission.
Afterward, Justice Mosk was withering in his condemnation of the commission that “wasted both time and money by failing to exercise restraint before conducting proceedings.”
“The information the Commission members had before they donned their makeup for television performances was that there was no basis for charges against any member of the court,” Justice Mosk said.
When he toted up the winners and losers, Justice Mosk deemed the commission among the former. “They received personal recognition and adulation from professional court detractors. Some members of the Commission counsel staff won. One assistant is now running for Congress on the strength of the attention he received.”
The big loser: the Supreme Court.
Trying California’s Judges on Television: Open Government or Judicial Intimidation? (by Laurence H. Tribe, ABA Journal)
The Wages of Secrecy (by Carol Benfell, ABA Journal)
Judge as Statesman, Judge as Pol (by Alan M. Dershowitz, New York Times book review)
Chilling Judicial Independence—The California Experience (by Justice Stanley Mosk) (pdf)
People v. Tanner (Supreme Court of California Resources)
Breaking New Ground
In 1998, the commission made a highly unusual move when it accused a veteran state appeals court judge of “willful misconduct” in connection with a dissenting opinion he wrote the year before.
The decision Kline objected to involved a controversial California practice—already rejected by the U.S. Supreme Court—in which parties to a lawsuit can, in effect, wipe earlier judicial decisions off the books if they settle a case. Critics say it is a way for wealthy litigants to buy their way out of precedents they don’t like.
Justice J. Anthony Kline stated in the dissent that “as a matter of conscience” he could not adhere to a state Supreme Court precedent. The precedent in question was “destructive of judicial institutions,” he wrote. Trial judges and appeals court justices are expected to follow the precedents set by the Supreme Court, but when they do not do so, the usual remedy is for the Supreme Court to reverse their rulings. At the time of the controversy, the commission had never before moved to discipline an appeals court jurist for a written opinion.
The commission contended that Kline violated two canons of the state Code of Judicial Ethics—one that says judges must act so as to promote “public confidence in the integrity and impartiality of the judiciary” and a second that states that “a judge shall be faithful to the law.”
The accusation against Kline by the commission was also surprising because appellate judges hear cases in three-judge panels and Kline's statement came in a dissent—a judicial statement that has no legal effect other than to state a judge's opinion. The precedent involved in this case was a controversial one among lawyers and had been criticized extensively in the past by legal scholars.
Kline was accused of “conduct prejudicial to the administration of justice that brings the judicial office into disrepute, improper action and dereliction of duty,” which were charges that could lead to censure or even removal from the bench. New York University law professor Stephen Gillers, who specializes in legal ethics, commented publicly on the Kline case, saying it was sure to generate broad discussion in the legal world because “it goes to the very heart of judicial administration and conscience.” According to Gillers, if public officials do not follow the decisions of the Supreme Court, there would be no system governed by the rule of law and we would have “anarchy.”
Many critics felt the charges against Kline were excessive and controversial because the commission was threatening possible censure just because Kline expressed his belief that the Supreme Court should reconsider a decision.
The proceedings against Kline created a firestorm among lawyers and judges around the country. The American Bar Association and several local bar associations urged the commission to drop the charges.
In his letter to the commission, Kline defended himself, writing that “unlike the ordinary case filed by the commission, the allegations against me do not claim that I acted for an improper purpose or involve ‘moral turpitude, corruption or dishonesty’ of any kind.”
Professor J. Clark Kelso, a constitutional scholar at University of the Pacific's McGeorge School of Law, said he was “outraged” by the commission's action. Kelso told the Los Angeles Times that the commission appeared to be asserting a power to set itself up as a shadow Supreme Court, where if it doesn't like how an appellate justice votes or writes an opinion, then it can institute proceedings against him, creating “an intolerable intrusion on judicial decision-making and independence.”
In August 1999, more than a year after the commission brought its charges, it ruled that Kline did not act in bad faith and therefore did not violate the Code of Judicial Conduct.
Panel Contends Judge's Dissent Was Misconduct (by Henry Weinstein, Los Angeles Times)
Panel Drops Case Against State Appeals Court Judge (by Henry Weinstein, Los Angeles Times)
Panel Dismisses Judicial Misconduct Charges (Los Angeles Times)
Actions by the Commission
Over the years, the commission has been criticized for the low percentage of complaints it receives actually ending in judicial sanctions. Here are five cases where punishment was meted out.
· Riverside County Superior Court Judge Paul E. Zellerbach was publicly admonished in 2006 for refusing to return from a 2004 Angels baseball playoff game to handle a verdict in a murder trial. Zellerbach had arranged for another judge to handle any questions from the jury while he was at the ballpark, but when informed by court officials that the jury had a verdict refused to let another judge handle it.
· Former Orange County Superior Court Judge Ronald C. Kline was barred in 2006 from receiving work from state courts after pleading guilty to possession of child pornography.
· Los Angeles Superior Court Judge Patrick B. Murphy was removed from the bench and censured in 2001 after the commission charged him with malingering, excessive absenteeism and attending a Caribbean medical school while on the judicial payroll. He resigned, citing ill health, the same day the commission announced its decision.
· Monterey County Superior Court Jose Angel Velasquez was removed from the bench in 2007 for an “egregious pattern of misconduct.” He “incarcerated several defendants without respect for their constitutional rights; he increased sentences and showed irritation when defendants asked him straightforward and respectful questions about their sentences; he interfered with defendants’ exercise of the right to trial by jury and coerced defendants into diversion; he expressed his unhappiness with attorneys by not recalling bench warrants for the arrest of their clients and by making disparaging remarks regarding attorneys; and he used inappropriate humor about incarceration.”
· Los Angeles Superior Court Judge Kevin A. Ross was ordered removed from the bench in 2005. Among his offenses were: incarcerating a defendant without any pretense of due process, questioning a defendant who had requested counsel, calling a defendant a pathological liar, discussing details of a pending juvenile case on television and “acting as a private arbitrator during filming of a pilot television program for a possible reality series.”
Judge Delayed Murder Verdict to Watch Game (by Maeve Reston, Los Angeles Times)
Former O.C. Judge Won't Get State Work (by Sara Lin, Los Angeles Times)
Panel Fires Judge Who Resigned (by Richard Winton, Los Angeles Times)
Inquiry Concerning Judge Jose A. Velasquez (CJP website)
Inquiry Concerning Judge Kevin A. Ross ((CJP website)
The commission regularly fine tunes its internal rules after circulating proposed changes for public comment. In March 2011 it adopted more than half a dozen additions and amendments.
Among the changes was a decision, in the future, to disclose to the Fair Political Practices Commission any information it uncovers that reveals possible violations of the Political Reform Act. Another rule allows the commission to pursue complaints about “subordinate judicial officers” that had been closed because the person being investigated had retired or resigned.
Does the Commission Protect the Public or Judges?
What is the practical role of the Commission on Judicial Performance? Does it protect the public from judicial misconduct or protect judges from the prying eyes of a skeptical public?
It Protects Judges and the Judicial System
Critics of the judicial performance commission system used in various forms across the country often point to what they perceive as its greatest weakness: it is primarily lawyers and judges judging judges. Non lawyers sitting on California’s Commission on Judicial Performance are regarded as tokens. The real power lies with the judges and no amount of tweaking the system changes that.
They are all members of the same professional community. They read the same legal journals, attend the same schools, are members of bar associations, socialize at legal gatherings, identify with each other’s role and generally empathize with each other.
The proof of how ineffectual such a system is, they say, the very low rate of punishment handed out. Since its inception 50 years ago, only nine judges have been removed from office and only 28 have been publicly censured. In the 1,133 cases concluded in 2010, no judges were removed and only three were publicly censured. Four were publicly admonished.
Is that proof of a well-behaved judiciary or a lax commission?
The vast majority of complaints are dismissed without comment, much less investigation. And despite five constitutional amendments over the years meant to make the system more transparent, the Commission on Judicial Performance performs mostly in secret.
Even when it is admonishing judges for misdeeds, the finger-wagging is most often done behind closed doors. The public good is hardly served by politely asking a judge in private not to do what he is already doing although it does preserve judicial decorum and collegiality.
Cynics wonder if the few cases that actually result in public punishment are just efforts to head off larger scandals before they hit the news media or, perhaps, political payback.
Accountability is the bulwark of a democracy. Although many judges are elected, few are judged on their records because the records are unknown. Grassroots efforts by concerned citizens to gather records of judicial decisions for dissemination on scorecards are generally scorned by the profession. It doesn’t want to be policed by the electorate or judge its own.
The Demise of Justice in the U.S. (Tulanelink.com)
Discipline—State Court Judges (Citizens for Judicial Accountability)
It Protects the Public
Blame it on Judge Judy.
Mike Farrell, former television star of M*A*S*H and civilian member of California’s Commission on Judicial Performance in 2000, says that public respect for judges and suspicion about their ethical performance is a direct result of the televised histrionics of fake judges and fake courtroom proceedings that Americans religiously watch.
“I find it of particular concern that the current crop of pseudo-court shows is thought by the television audience to be authentic,” Farrell said, noting that complaints about judges on the shows are regularly made to the commission.
“As television's treasury is fattened, the public's faith in the dignity of the courts is diminished.”
Amid this general disregard for the legal profession and judges in particular is a legitimate suspicion by the public of secrecy in government. But defenders of the commission and its procedures argue that the judicial branch of government, unlike its executive and legislative brethren, have a special obligation to maintain a certain level of confidentiality.
A 2007 decision by the state 2nd District Court of Appeals laid out the reasons for the commission’s secrecy. The commission had refused a Superior Court order to surrender the complaint record sought by an accused criminal of a judge in whose court he had appeared. The Court of Appeals sided with the commission.
“The confidentiality of the Commission's investigations is based on sound public policy,” the court said. It encourages the filing of complaints and the participation of citizens and witnesses by protecting them from retribution and recrimination. It protects judges from unwarranted complaints by disgruntled litigants or attorneys. And it protects the rights of judges, who are guaranteed the confidentiality of a private admonishment (should circumstances dictate it) by the state Constitution.
“No prescience is needed to foresee the flood of unfounded complaints” that would result if the commission’s secrecy is not respected, the court concluded.
Even with confidentiality, the “flood of unfounded complaints” continues unabated. The reason the vast majority of complaints to the commission are dismissed by the staff without a full investigation is that they fail to meet the basic standard for acceptance: they aren’t about judicial misconduct.
The majority of complaints allege the types of legal errors or “miscarriages of justice” meant to be handled through the court appeals process, not the commission.
Perhaps a less cynical reading of the low rate of misconduct unearthed by the commission might be that the judicial system actually has a relatively low rate of misconduct and that the commission is contributing to that by deterring bad behavior.
Among the more virulent complaints about the commission is that it is judges judging judges, protecting their own in a hermetically sealed, incestuous zone of comfort. However, only three of the California commissioners are judges. Two are lawyers and six of the 11 are public members.
Some of the commission’s critics are motivated by ideology and politics, with a built-in suspicion of a judicial system that is soft on crime and mushy about protecting their cultural values. They seek to influence judges who are making sound decisions based on laws that they happen to disagree with, by putting them under a spotlight of notoriety.
Former Justice Stanley Mosk once noted that the founding fathers hoped the judicial branch would be “above the fray, impervious to the political winds. . . . I regret that in this age of cynicism about all government I am no longer confident of that protection, nor am I sanguine about the future.”
He wrote that in arguably far less cynical times, 30 years ago.
There's Disorder in the Court—and Television Stands Accused (by Mike Farrell, Los Angeles Times op-ed)
Commission on Judicial Performance v. Superior Court of Los Angeles (FindLaw.com)
Judith McConnell, 2009-2012
Frederick P. Horn, 2007-2009
Marshall T. Grossman, 2005-2007
Vance W. Raye, 2004-2005
Rise Jones Pichon, 2002-2004
Michael A. Kahn, 2001-2002
Daniel M. Hanlon, 1999-2000
Robert Bonner, 1997-1999
William A. Masterson, 1995-1997
Eugene M. Premo, 1993-1994
Arleigh Maddox Woods, 1988-1993
John T. Racanelli, 1981-1987
Bertram D. Janes, 1975-1980
A.F. Bray, 1960-1964. First chairman of the panel, originally known as the Commission on Judicial Qualifications.
- Table of Contents
- Overview
- History
- What it Does
- Where Does the Money Go
- Controversies
- Suggested Reforms
- Comments
- Leave a comment
