To the Editor, California Bar Journal

From Law Office of Gary Zerman, July 23, 2001

I take issue with the opinion piece "Holding Judges Accountable" by Michael A. Kahn (Chairman, Cal. Commission on Judicial Performance (CJP) July 2001 issue P. 8.  Mr. Kahn there makes the following assertions:  1) the system of checks and balances is the crucial structural feature in our democracy; 2) the CJP has a specific mission to protect the public and has performed a critical service in ensuring that the Code of Judicial Ethics effectively constrains improper exercise of judicial power and authority; 3) lawyers have been instrumental in helping the commission fulfill its mission; and, 4) the CJP has established extensive and redundant procedures to pre-screen judicial candidates.  Mr. Kahn is short on specifics and overall he has written a misleading PR puff piece, which when scrutinized simply does not hold water.

Fundamentally, we are NOT a democracy - that word is not found anywhere in our US Constitution, nor in our Declaration of Independence.  America is in fact a republic (See Art. IV, sec. IV, US Constitution and recall our Pledge of Allegiance).  The first task given our Union and constitution was to "establish justice" (see the Preamble).  The fact of the matter is though, there have been very few checks on the judiciary, since Marbury v. Madison, 2 L.Ed. 60 (1803), and thereafter the courts have continued to grab more power and abuse it.

One early stark example is Bradley v. Fisher, 80 U.S. 335 (1872), where the U.S. Supreme Court wrongly grabbed and granted themselves (and all their colleagues) absolute judicial immunity.  (See "Suing Judges:  History and Theory" (1980) 31 So. Car. L. Rev. 201.)  Another is Stump v. Sparkman, 435 U.S. 349 (1978).  A major purpose of our Constitution was to place constraints on government; to limit its power.  That included the judiciary.  Nowhere in our Constitution was the judiciary given immunity - particularly nowhere in Art. III.  Under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, sections 9 & 10, respectively, in fact expressly PROHIBIT such, stating, "No Title of Nobility shall be granted by the United States" and "No state shall... grant any Title of Nobility".  Remember, we fought a revolution because we disagreed with the divine right of kings.

True mechanisms, or the will, to ensure that judges are held accountable simply have not existed, as in our 212 year history Congress has impeached ONLY nine federal judges (United States v. Hastings, 881 F.2d 706 (11th Cir. 1982) and complaints against federal judges (28 USC sec 362(c)) are judged solely by other federal judges.  Thus the checks have been illusory in theory, and bankrupt in application.  (See "Without Merit:  The Empty Promise of Judicial Discipline" (1997) Vol. 4, No. 1, Mass. School of Law - the Long Term View, p. 90 [NOTE:  Under Newspapers/Magazines, click on Without to read this article.] and LA Daily Journal, P. 7 article "Taking the Hard Knocks of Judicial Immunity", arguing judges giving other judges immunity is just their way of "simply 'looking out for No. 1'".)

Mr. Kahn correctly points out that California had no independent body watching over our judges until 1961, when FIRST among all states, the California Commission on Judicial Qualifications [CJQ - predecessor of CJP] was created by voter referendum.  (Before then, apparently, it was believed judges wore halos.)  However, very quickly the independent streak and reform ethic of the CJQ, was thwarted by the Cal. Supreme Court in Stevens v. CJO (1964) 39 Cal. Rptr. 397, where it "... [found] no basis for supporting and therefore reject, the recommendations of the Commission on Judicial Qualifications that petitioner, Charles F. Stevens be removed from office.  The proceeding is dismissed."

The CJQ-CJP got the message and many times thereafter has abandoned its mission to protect the public, and instead has sided with and protected miscreant judges.  For example, a 6-94 LA Times P.A.3 article "Judges Flout Law on Closed Disciplinary Hearings, Lundgren Says" reported "Six years after California votes enacted a measure calling for greater access to judicial disciplinary proceedings, 'an open hearing has yet to be conducted in this state', Atty. Gen. Dan Lundgren said this week as he urged support for legislation to strip away the veil of secrecy from inquiries into judges' conduct."  Lundgren's letter further stated "... the system has thwarted the will of voters" as "... Judges charged... have avoided public hearings after they 'sought and received some form of secret writ relief from other courts in this state'... [in] 'complete frustration' of constitutional provisions [which] raises 'troubling questions regarding the functioning of California's judicial disciplinary procedures.'"

The Cal. A.G. is supposed to be - the people's attorney.  Therefore the question must be asked:  Where was the A.G. when those "secret writs" were issued that "frustrated" the Constitution?  The fact of the matter is, he simply entered the water after it was safe.  See 12-19-93 LA Daily Journal, P. 6 opinion piece "Judges Can't Judge Themselves - Commission on Judicial Performance is Rigged to Protect Itself"; 3-17-94 LA Daily Journal front page article "Massive Reform is Proposed on Judicial Probes" which reported State Senator Charles Calderon told the CJP representatives in hearings, "'You just kind of exist... You don't do much...' 'The whole notion that the Commission on Judicial Performance ensures accountability is almost laughable '"; and 4-19-94 front page LA Daily Journal article "Judicial Panel Draws Fire at Budget Hearing" which further reported Senator Calderon telling Ms. Victoria Henley (then and current CJP Director-Chief Counsel), "'I don't see how the commission can make the argument [it] protects the integrity of the courts... I don't see any accountability for the courts'" and '"implied McDonald's restaurant workers were subjected to more oversight than the commission provided judges.'")

Most recently the CJP's handiwork was shown in the case of Judge W. Jackson Willoughby III.  A 5-10-01 LA Daily Journal P. 3 article "Judge Berated for Groping Bailiff Returns to Courtroom" reports Willoughby was ONLY censured - not removed -

 "...for grabbing his bailiff's breasts [and] has returned to the bench after an extended medical leave, shortly after his request for disability retirement was denied... 

"Willoughby, 65, was the presiding judge when he inappropriately touched a deputy while they were in his chambers in May 1998.  Other offensive workplace conduct included referring to a female deputy district attorney as 'Old Iron Tits,...'".

In June 1998, Willoughby was banished from the courtroom and spent the next three years on paid leave, getting his full annual salary of $117,912.  During that time, Willoughby's bailiff and clerk each filed a sexual harassment lawsuit against him, which cost the county and state $170,000 in settlements.  So in total, Willoughby cost the taxpayers over $524,000.  The most devastating cost though, is the broken trust between the people and their government - here the CJP - who returned Willoughby to the bench.  We also will get the bill for his undeserved pension. To his credit, Mr. Kahn (with 3 other CJP members) voted to remove Willoughby (2000 CJP Annual Report P. 160); shame on those who voted to keep him on the bench.  [NOTE:  This article may be read in full; click on link to  Newspaper/Magazines, and then to Judicial Misconduct.]

Then there is the case of Judge (now ex-judge) Patrick B. Murphy, reported in the 10-17-00 front page LA Daily Journal article "Judge Went to Medical School During Sick Days - [CJP] Panel Claims that Judge Falsely Said He Was Ill".  Murphy amazingly was allowed to collect over $450,000 in paid sick leave before he was finally canned, thereby topping Willoughby in that category.  The LA Times published three (3) editorials criticizing the CJP about its handling of Murphy:  03-07-00 "Panel Dawdles, Some Judges Stray" P. B16; 01-31-01 "Less Investigation, More Verdict", P. B12; and 04-23-01 "Meaner Judicial Watchdog Wanted", P. B10.

Next, Mr. Kahn is incorrect that lawyers are instrumental in policing judicial misconduct.  The fact of the matter is - it just does not happen often.  For example, ONLY 6% of the complaints it receives come from attorneys, and ONLY 2% from judges/court staff.  (2000 CJP Annual Report, P. 12).  This is despite attorneys arguably having a duty to report judicial misconduct (Cal. Bus. & Prof. Code, Sec. 6068) and judges in fact have that stated duty.  (Cal. Code of Judicial Ethics, Canon 3D(1)).  Both have such a duty as citizens.  But why such meager numbers?  A code of silence, perhaps?  Fact is, too many attorneys curry favor to judges, or worse yet - some are partners in crime with judges.  (U.S. v. Frega, 179 F. 3d 793 (9th Cir. 1999); Bracy v. Warden, 520 U.S. 899 (1997); and Kimes v. Stone, 84 F. 3d 1121 (9th Cir. 1996).  The fact is most true attempts at reform have come from concerned citizen action (Propositions 92, 190 and 221), and not from the Bar.

Moreover, every year about 88% of all complaints filed against California judges are "closed after an initial review", without any investigation.  (2000 CJP Annual Report, P. 93, 10-year summary of Commission Activity Chart.)  88% summarily dismissed?  (It must be that halo thing again).  A closer look at that 10-year Summary Chart shows a grossly inordinate amount of "zeros" or "<1% tallies occupy the remainder of case dispositions.  Recall above, Senator Calderon's comments to the CJP "... You don't do much..."

Those few courageous attorneys that do step forward - do so at great risk.  Attorneys reporting judicial misconduct, clearly put their careers in jeopardy.  (See 6-10-00 LA Times front page article "Risking it All on a Legal Crusade - [Washington State] Lawyer Defied Professional Standards to Get a Corrupt Judge drawbridges - But his Practice, Home Life Suffered"; the November 1989 California Lawyer P. 140 article "When Lawyers Accuse Judges"; and 06-20-94 LA Times P. 13 article "Lawyers' Letter Raises Ire of Judicial Panel - Attorney for Commission on Judicial Performance is placed on leave after taking complaints to lawmakers", reporting that a long time staff attorney at the "beleaguered" CJP was placed on leave for sending a letter to the state legislature about how the CJP went after him and asking them to give CJP employees involved in the "difficult work" of investigating judges, protection from being fired at will.  Assembly Judiciary committee chairman Philip Isenbert (D-Sacramento) said he was bewildered by the commission's move against Plotz and "It's not only stupid but highly ironic that the commission would discipline one of its senior staff - not for revealing secrets, even under the represented law, but for revealing public information."

Mr. Kahn seems to recognize these problems, where he states "judges are powerful figures in our society and in the lives of lawyers", and the CJP takes steps to protect the rights of complainants, witnesses and lawyers, by allowing complaints to be filed anonymously and keeping participants from collateral consequences.  Translation:  watch out for retaliation.  Retaliation is in fact a real concern.  (See Soliz v. Williams (1999) 74 Cal. App. 4th 577; which cites Barrett v. Harrington, 130 Fed. Rptr. 3d (1997 6th Cir.); Cannon v. CJO, 14 Cal. 3d 678; and Briggs v. Superior Court (2943Z) 325 Cal. 336.)  And little, in fact, is done to combat it.

Next, Mr. Kahn is wrong when he states the CJP has established extensive and redundant procedures to pre-screen judicial candidates.  For example, see the 07-18-00 LA Daily Journal P. 3 article "Officials Assess Judicial Review Process" that reported,

"State judicial officials agree that closer scrutiny of nominees is necessary in the wake of scandalous charges that Los Angeles Superior Court Judge Patrick Couwenberg lied about his background, including falsely claiming he had been a CIA agent and fabricating a combat wound that made him late for court...

"Couwenberg's judicial appointments secretary, said the governor's office did not investigate the background of those seeking to become judges.  Instead, Wilson's office relied on the Los Angeles County Bar association and the Bar's Commission on Judicial Nominees Evaluation..."

Judicial misconduct damages the integrity of the legal system more than anything else.  Judges do have tremendous power, and recall Lord Acton's quote, "Power tends to corrupt, and absolute power corrupts absolutely".  Now substitute "immunity" for "power" and repeat that quote.  Clearly, judges must be held accountable.  But also recall Edmund Burke's quote, "the only thing necessary for the triumph of evil, is for good men to do nothing".  There may have been a time long, long ago, when the public looked to lawyers as the vanguard of justice.  Fact is, too many lawyers, for too long, have done too little about ensuring judicial accountability.  The same can be said about the Commission.

Gary L. Zerman, Esq.