State Judicial Panel May Ask Increase in Authority

The state Judicial Performance Commission is considering asking for wider authority to discipline errant judges and for an expansion that would place non-judges in the majority for the first time in its 26-year history.

The nine-member watchdog commission, at the urging of state legislators, is reviewing a far-ranging list of proposed changes in its procedures.

Some proposals have drawn strong opposition from the California Judges Assn., the organization that represents the 1,380 members of the state judiciary, and from some elements of the State Bar.

The plan to shift the balance of voting power away from judges perhaps has evoked the most controversy. Backers say it could strengthen the commission in the eyes of the public and help refute any accusation that it is soft on the judiciary.

‘You Hear Criticism’

“At present, it’s very unusual to have a 5-4 split with judges on one side and the rest of the commission on the other,” said San Francisco Municipal Judge Charles Egan Goff, a commission member who favors the change. “But on the other side of the coin, you hear criticism that this is somehow a ‘club’ that favors judges. That’s not the way it is--but with our current makeup, that’s the perception that can arise.”

The judges’ association argues that the change is unwarranted and would make commission proceedings more cumbersome and time-consuming.

“California’s Commission on Judicial Performance is nationally recognized as the leading judicial disciplinary agency in the country,” the CJA’s president, Appellate Justice Elwood G. Lui of Los Angeles, said in a recent memorandum to the commission. “A change as sweeping as this suggestion could lead to its ruin for no good purpose.”

Sweeping Reforms

The proposals would require amendments to the state Constitution and, if adopted, would represent perhaps the most sweeping reforms to date of the commission, a pioneer in its field that has served as a model for similar agencies that now operate in all 50 states.

The commission, meeting in closed sessions, is expected to decide by next month what proposals to offer to the Legislature.

Under law, the commission is empowered to investigate complaints of misconduct against judges and recommend that the Supreme Court remove them from office or censure them publicly. In addition, the commission on its own may privately admonish or warn a judge for lesser misconduct. More than 300 complaints are received annually--most of them dismissed as baseless after a preliminary investigation.

Six Judges Removed

Commission recommendations for action have been generally upheld by the court and, over the years, six judges have been removed and 14 publicly censured--with 85 others resigning or retiring during commission investigations.

The new proposals under consideration would:

- Add at least one public representative and one attorney to the commission, which now includes two state appellate justices, two Superior Court judges, one Municipal Court judge, all appointed by the state Supreme Court, two non-lawyers appointed by the governor and two attorneys named by the State Bar.

- Allow the commission to impose the additional sanction of public admonishment--a penalty that could be issued without state Supreme Court review unless requested by the judge.

- Authorize the commission to require a judge to undergo private counseling in cases where wrongdoing is not serious enough to warrant public discipline.

- Suspend payment of salary to a judge the commission has recommended be removed from office. At present, judges are barred from serving while their removal is being considered but continue to draw pay.

The proposals are an outgrowth of an exchange last spring between commission representatives and members of a state Assembly subcommittee on the administration of justice.

At that time, the subcommittee was reviewing legislation--never enacted--that would have added six more public representatives to the commission. And legislators, suggesting that the commission had been too cautious in the past, urged that the agency come up with new ways to deter judicial misconduct.

Questions were also raised over whether judges who were defeated in an election or were under commission investigation should be denied disability retirement pensions. Commission representatives promised to cooperate in any further legislative inquiry on that subject.

Considerable Interest

Gene Erbin, the subcommittee counsel, noted that the questions raised during the hearing are still of considerable interest in Sacramento--and that the proposals for adding non-judicial members and increasing the disciplinary authority of the commission would likely be regarded as “significant” by the Legislature. “We’re hoping they do propose some changes,” he said.

Supporters of the proposal to add non-judges to the commission say that there is no evidence that jurists are any easier on their colleagues than are the lawyers or public members. But adding non-judges would help ensure against such a possibility, they say.

Opponents doubt an expansion of the commission would help it perform better--and fear it would only add to the length of time it takes to resolve complaints. In any event, they say, it is often the judicial members of the commission who take the lead in complicated cases where wrongdoing by a judge might not be readily apparent to a layman.

‘Symbolic Importance’

“The argument for this proposal is based largely on its symbolic importance,” said Jack E. Frankel, the commission’s director and chief counsel. “There’s the fear that the public tends to write off commission actions because they think it’s under control of judges. But weighing against that is the concern that additional public members, at least, might not be all that aggressive against judges.”

The proposal to add public admonishment as a sanction is meant to give the commission more flexibility in dealing with cases where wrongdoing does not warrant removal or censure but is still serious enough for some kind of public criticism.

It would also enable the commission and a judge to settle a case without the long and costly process of a formal investigation by the commission, followed by a proceeding before the state Supreme Court--where both sides, represented by attorneys, must file briefs, make oral argument and wait months for a decision.

Fatal at Election Time

But opponents, including the judges association, say the public is not likely to recognize the fine line between public censure and the lesser penalty of public admonition--and that judges who before might have drawn private reprimands would now face public admonitions. For a judge, any official public criticism imposes a “brand” that is nearly always fatal at election time, the association says.

Advocates of the salary-suspension provision say it simply makes good sense to stop paying a judge who has been suspended from office while the state Supreme Court decides whether to order permanent removal. Moreover, they say, if the court rules in favor of the judge, he would be entitled to

Sanction Too Severe

Opponents argue that the pay-sanction is too severe and would be analogous to imposing a sentence before trial in a criminal case.

“This would totally deprive judges of income for months or a year or more while the state Supreme Court decides the case,” said Constance E. Dove, executive director of the judges’ association. “They can’t serve as judges during this time, they can’t practice law and they’d be left with slinging hash or something to sustain their livelihood.”

Leaders of the State Bar appear divided over the proposals. In December, a Bar committee report found that imposing public admonishment as a penalty would be an “appropriate addition” to the commission’s authority.

But the committee recommended against the expansion in commission membership, concluding that “it is not clear just what problem this proposal is designed to solve.” The committee also found that the pay-suspension proposal was “too strong a sanction” for the commission to wield.

At a recent meeting, the Board of Governors of the Bar voted to oppose the addition of public admonitions by the commission--but decided to take no position on the expansion of the commission or pay-suspension proposal.