Proposition 92 Judicial Panel Terms : Measure Would Remove a Veil on Judicial Performance Panel

The California Commission on Judicial Performance, which handles misconduct complaints against judges, operates in virtual secrecy. All its hearings are held behind closed doors, and in the 27 years of its existence, only 30 disciplinary recommendations have been made public.

A proposed constitutional amendment that would bring what its sponsor calls “a modicum of sunlight” to the San Francisco-based state agency will appear on the Nov. 8 ballot as Proposition 92. It would allow open disciplinary hearings in limited instances.

State Sen. Ed Davis (R-Valencia), author of Proposition 92, had originally sought to require that all formal proceedings against judges be conducted in public, as they are in 24 other states.

But after negotiations with the commission and the organizations that administer the state’s judicial system and represent its judges, Davis settled for relatively modest goals.

Davis, who became interested in the commission’s procedures two years ago when the agency rejected a complaint he filed against then-Chief Justice Rose Elizabeth Bird, touts his compromise measure as the first step in illuminating the workings of the commission.

The measure has the support of the commission itself, and is not facing organized opposition from the California Judges Assn., the jurists’ lobbying group.

“We’re not part of the cheering section . . . (but) it’s now something we can probably live with,” said San Mateo Superior Court Judge V. Gene McDonald, immediate past president of the judges’ association.

The commission, made up of five judges, two lawyers and two public members, investigates complaints and is authorized to admonish judges privately or recommend to the state Supreme Court that a judge be censured or removed.

Under the California Constitution, only cases that result in recommendations to the court can be made public. Nine judges have been removed on recommendations from the commission, and another 16 have been censured. (One case was dismissed, and another judge resigned before the court took action.)

Two removal cases and one censure case are pending before the high court.

McDonald said secrecy is needed to preserve public confidence in the judiciary and protect judges from unfounded charges. Proponents of more openness believe that if after a preliminary investigation there is enough evidence to file formal charges of misconduct, further secrecy is unjustified.

Critics of the current system also note that under current confidentiality rules, it is impossible to assess the commission’s performance.

From its inception through 1987, the commission handled 6,185 complaints against judges, the vast majority of them frivolous or inappropriate, according to the commission.

In 1977, private admonishments were introduced as a new discipline category, and since then, 63 judges have been reprimanded that way. Another 90 judges resigned or retired while under investigation, and the commission kept their cases private.

Under Proposition 92, disciplinary hearings could be made public at the request of a judge or if the charges involve moral turpitude, dishonesty or corruption. Very few cases in California fit those descriptions, and few judges are likely to ask for public proceedings, according to Jack E. Frankel, the commission’s director and chief counsel.

He was able to cite only three previous cases that might have been public during the hearing stage if Proposition 92 had been in effect.

To gain the commission’s support, Davis included in his measure a new category of public discipline--a kind of plea bargain that would be available to some judges facing the possibility of censure or removal. The judge might be given the option of accepting a “public reproval” and avoid a potentially costly hearing that could have more severe consequences.

Public reproval would fall somewhere between private admonishment and public censure on the discipline scale, Frankel said.

Frankel said public reproval might be particularly appealing to a judge who is accused of violating procedures--such as the constitutional requirement that cases be decided within 90 days--rather than an accusation of abuse of power.

But he acknowledged that judges may be reluctant to choose this form of discipline out of fear that voters will be unable to distinguish between “public reproval” and “public censure” at election time.