No Public Access : Top Secret: Complaints About Judges

When Robert H. Furey Jr. ran for Los Angeles municipal judge two years ago, the voters lacked an important piece of information about him.

Furey, a Catalina Justice Court judge, had been under investigation by the state Commission on Judicial Performance for 22 months for misconduct, including the repeated jailing of a woman who had filed a complaint about him.

Furey lost the election, and eight days later the commission recommended to the state Supreme Court that he be removed from the bench.

However, until the panel’s recommendation was announced, the investigation of Furey had been secret.

Special Arrangement

Few government agencies in California are as shrouded in secrecy as the agency that handles misconduct complaints by lawyers and the public against the state’s 1,406 judges.

Made up of five judges, two lawyers and two non-lawyers, the commission may privately admonish a judge or recommend censure or removal to the Supreme Court, which all but twice has accepted the agency’s recommendation.

Nine judges have been removed or forced to retire and 16 have been publicly censured in the commission’s 27-year history.

Established in 1961 as the first agency in the country specifically created to investigate judicial misconduct, California’s commission was a trailblazer. By 1981, every state had a similar commission.

But now, according to many experts in the field of judicial discipline, California’s commission is no longer in the vanguard in an area of growing importance--public access.

In 24 states, disciplinary proceedings are open to the public as soon as “probable cause” of misconduct is established and formal proceedings are instituted.

Public’s Interest

“More and more states are recognizing that there is a strong public interest in having public access to these proceedings,” said Jeffrey M. Shaman, director of the nonprofit Chicago-based Center for Judicial Conduct Organizations, a clearinghouse for disciplinary groups run by the American Judicature Society.

In California, disciplinary hearings have always been closed. Once a complaint is found to have merit and formal charges are filed, a fact-finding hearing is held before “special masters,” judges appointed by the Supreme Court. The commission then reviews the evidence gathered by the masters and may call witnesses of its own.

Most cases have remained secret even after the commission completed its work, since, as a rule, only cases that result in disciplinary recommendations to the Supreme Court can be made public. Otherwise, even the complaining party is told only that “appropriate action” has been taken.

In 1984, the Supreme Court--the final authority on commission procedures--further restricted information about the commission’s work. The court ordered that censure recommendations remain confidential for 30 days or until the judge has had an opportunity to respond.

Proposition 92, a constitutional amendment passed by the voters on Nov. 8, was originally designed to open commission hearings. But it was so watered down through negotiations with judicial organizations that it will make public only a minuscule number of cases.

Proponents of openness say secrecy in judicial disciplinary proceedings is harmful for three reasons:

- Voters are deprived of information they need to make informed choices.

- Judges are accorded special protections denied to other citizens.

- Citizens are unable to evaluate the performance of the commission itself.

On the other hand, judges say confidentiality, which is mandated by the state Constitution, is needed to preserve public respect for the judiciary as a system and to protect jurists from unfounded charges.

Special Considerations Defended

Retired Los Angeles Superior Court Judge Jerry Pacht, a former commission member, concedes that judges get more protection than ordinary citizens accused of wrongdoing but believes that it is justified.

“I think (judges) get more than due process. No other class of miscreants gets that,” Pacht said. “They (judges) don’t deserve that. The system does.”

Judges also point out that they make convenient scapegoats and are particularly vulnerable to complaints from citizens who are unhappy about their rulings.

Since they must run for reelection, judges are understandably sensitive about criticism. In most cases, censure by the disciplinary commission has virtually been the equivalent of removal.

Only four of 16 judges have managed to withstand the stigma of public censure; all had unusually strong community support. The rest either retired or were defeated at the next election.

Although judges tend to regard the commission as “some kind of multi-headed serpent,” in the words of Court of Appeal Justice John T. Racanelli, a former chairman, the record shows that they actually have little to fear.

From 1961 through 1987, the commission handled 6,185 complaints, the vast majority of them either frivolous or inappropriate, according to its annual reports. To date, only 31 cases have led to recommendations of censure or removal.

Some observers, such as Hillel Chodos, a Beverly Hills attorney who served on the commission in the 1970s, believe that the dispute over confidentiality mirrors a division over what the function of the commission is supposed to be.

Perceived Function

“Most judges think of the commission as a sort of inside, self-policing body for a small group of specialized public employees,” Chodos said. “I don’t think you need a commission of that kind.”

Chodos and others believe that the commission’s principal mission is to reassure the public that bad judges are being weeded out--a purpose that they believe is better served by openness.

By conducting most of its work behind closed doors, critics say, the commission perpetuates the fiction of the court system as a “mystical entity,” as the late U.S. Supreme Court Justice Felix Frankfurter put it.

Judges, he wrote in 1941, ought not to be viewed as “anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”

The recent furor over a Seattle judge’s sordid past has drawn further attention to the secrecy issue and has led to allegations that the Washington Commission on Judicial Conduct protected a pedophile.

King County Superior Court Judge Gary M. Little shot himself in the head Aug. 18, just as early editions of the Seattle Post-Intelligencer were rolling off the presses with a story alleging that he had molested several male students two decades earlier when he was a volunteer teacher.

These revelations came six years after the Washington Commission on Judicial Conduct privately admonished Little for taking juvenile offenders who appeared before him on shopping trips, to restaurants and movies and to his weekend cabin.

The commission has been widely criticized--by three state Supreme Court justices, among others--for choosing a private form of discipline, rather than allowing the matter to be aired publicly.

Lack of Authority Told

But the commission’s director, Esther Garner, said the agency found no evidence of sexual impropriety in the out-of-court encounters and had no authority to investigate the earlier incidents.

Even now, the Little file remains sealed, but legislative leaders are pushing for a major overhaul of the agency’s procedures.

Similarly, in California, critics question whose interests are served by secrecy. For example:

- When voters in a mountainous region of San Bernardino County went to the polls last June to decide if Justice Court Judge David Press should remain in office, they did not know that two months earlier the commission had recommended that he be censured for, among other things, lashing out at an attorney and accusing him of fraud in front of some of his clients.

The announcement of the censure was automatically delayed for 30 days. At Press’ request, the Supreme Court extended the delay until mid-July, over the commission’s objections. By then, Press had survived the primary election and was gearing up for a runoff.

His opponent, Michael Dest, believes that the electorate was cheated. Keeping the matter secret was a disservice to the community, he said.

Press, who was defeated Nov. 8, is contesting the censure recommendation before the state Supreme Court.

- For more than two years, the commission has been secretly investigating two Orange County municipal judges for allegedly offering lenient treatment to prostitutes in exchange for sexual favors.

Not until news reports about the case appeared recently did the commission take the unusual step of confirming that formal--but unspecified--charges have been filed against one of the judges, Brian R. Carter. The commission will not acknowledge that the other judge, Calvin P. Schmidt, is under investigation.

- San Francisco Superior Court Judge Thomas Dandurand was charged by the Monterey County district attorney’s office last January with committing battery on his girlfriend by knocking her down during a weekend trip to Carmel, causing her to cut her head on a bathtub faucet. The wound required several stitches.

Dandurand was ordered to undergo six months of counseling as part of a plea bargain.

The Commission on Judicial Performance voted not to proceed with an investigation, but in keeping with its procedures did not make its action public.

However, the judge’s attorney, William K. O’Brien, acknowledged under questioning that the commission decided that the incident had no connection to Dandurand’s judicial duties.

But there was no way for the public to learn about--and assess--the commission’s reasoning.

- Perhaps the ultimate test of the commission’s confidential operations occurred in 1979, when some members of the state Supreme Court were under attack for allegedly delaying politically sensitive decisions until after the November election to ensure the reelection of Chief Justice Rose Elizabeth Bird.

The commission heard five weeks of testimony in an extraordinary public hearing before the proceeding was forced behind closed doors as a result of a legal challenge mounted by Associate Justice Stanley Mosk. When the 11-month investigation ended, the commission was able to announce only that no formal charges of misconduct would be brought against any of the justices.

Despite the obvious public interest in the matter, the commission said it was prohibited from explaining how it had reached its conclusion.

Under a provision of Proposition 92 allowing “explanatory statements” in publicized cases, the commission will have more leeway to comment, according to Jack E. Frankel, commission director and chief counsel.

Support by Public

Support for public hearings appears to be building.

Court of Appeal Justice Arleigh M. Woods, who chairs the commission, and her two predecessors, lean toward open hearings, at least under certain circumstances.

“Once there have been formal charges made and probable cause established, then I’m not sure a judge is entitled to be insulated from public scrutiny,” Woods said.

If hearings were open, she would advocate tightening the rules of evidence to make these proceedings more similar to a trial, she said.

Alameda County Superior Court Judge Richard A. Bancroft, immediate past commission chairman, said that open hearings deserve consideration as long as appropriate safeguards are included. Racanelli, the previous chairman, said he favors the option of open hearings on a case-by-case basis.

But the California Judges Assn., the lobbying group for the state’s jurists, believes that there should be more protection for judges, not less. The group wants disciplinary recommendations made public only after the Supreme Court has taken action.

That way, the Supreme Court could decide to reject the recommendation or issue a private rebuke without damaging the judge’s reputation, said San Mateo Superior Court Judge V. Gene McDonald, former president of the judges group.

That proposal was rejected by an advisory committee established last year to recommend modifications in disciplinary procedures to the Judicial Council, which makes the rules governing the commission.

At the same time, the advisory committee affirmed its opposition to open hearings, saying that subjecting judges to election as well as public proceedings “may significantly undermine judicial independence with no equal concomitant public benefit.”

The judges were also able to weaken a provision of Proposition 92, drafted by state Sen. Ed Davis (R-Valencia), that would have mandated open proceedings once formal charges had been brought. Noting that police disciplinary proceedings in Los Angeles are open to the public, Davis sees no reason why judges are entitled to more privacy than police officers.

But Davis had to settle for a more limited Proposition 92, which will do little to lift the veil of confidentiality.

The measure will permit public hearings at the judge’s request--as is done in nine other states where hearings otherwise are closed--or under other, very limited circumstances. It also will permit open hearings when the charges involve moral turpitude, dishonesty or corruption.

Frankel cited only three previous cases that might have been made public during the hearing stage had Proposition 92 been in effect:

Only one judge--former Victorville Municipal Judge James J. McCartney--said he would have preferred an open hearing. And only San Diego Municipal Judge Lewis A. Wenzell and Los Angeles Superior Court Judge Robert S. Stevens were accused of misconduct that could be construed as moral turpitude, Frankel said.

Wenzell had been charged with soliciting prostitution after he was caught paying for the services of a call girl operation by credit card and personal check. Stevens made obscene telephone calls to his former secretary and her husband.

Records Sealed

But, Frankel said, the overwhelming majority of cases are much more likely to involve abuse of judicial power.

Since 1962, six judges have been ousted directly by the Supreme Court, Frankel said. The high court may on its own motion, without commission recommendation, remove judges convicted of felonies or crimes of moral turpitude.

Besides the closed hearings, the commission has been criticized for allowing judges to quietly resign or retire while under investigation, and for issuing private admonishments for conduct not deemed to warrant harsher discipline.

Through 1987, 90 judges left the bench rather than face possible humiliation and/or ouster. Five of these departures occurred last year. Records of these cases are sealed.

Defending this practice, Woods said, “The function of the commission is to remove judges who can’t function from the bench by whatever technique, and resignation is one way of doing that.”

Many of these judges were alcoholics, drug abusers or suffered from senility or health problems, and most of the past and current commission members interviewed believe that no purpose would have been served by holding them up to public scrutiny.

Judges who opt for resignation also avoid the considerable legal costs involved in defending the charges, which can cost as much as $50,000.

But when judges are allowed to leave the bench with impunity, argues Gerald Stern, administrator of the New York State Commission on Judicial Conduct, “the credibility of the disciplinary system suffers.” In New York, an investigation can continue for as long as four months after the judge resigns or retires, but only if the charges would be likely to result in removal.

In California, the commission may tell a judge who wants to resign that his case will be reactivated if he seeks judicial office again or takes a temporary assignment. These conditions have been imposed “more than once,” Frankel said, but no one has ever violated them.

By far, the bulk of the commission’s disciplinary work takes the form of private letters to the judge. The agency may send the judge an unofficial warning, known as a “stinger” letter. From 1984, when the commission began keeping count, through 1987, 98 such letters were sent.

Far more serious than the stinger letters are the private admonishments, which can be used in subsequent disciplinary proceedings to strengthen the case against the judge. Frankel said this form of discipline, which was imposed 63 times from 1977 through 1987, is “for minor derelictions which are significant.”

Private admonishment has been very successful, Frankel said. “It’s taken very seriously by the judges.”

But Shaman of the Center for Judicial Conduct Organizations said the trend across the nation is to do away with private reprimands.

“If there is an admonishment, that means there is a finding that the code (Code of Judicial Conduct) has been violated,” he said. “If there is a finding that a transgression occurred, the public should know about it.”

PUBLIC ACTIONS TAKEN AGAINST CALIFORNIA’S JUDGES

Oceanside Municipal Judge Charles F. Stevens, 1964 Commission recommended his removal for dismissing charges against a defendant he had previously represented in the same case. Supreme Court dismissed the case, saying there was “no basis for supporting” the recommendation. No further explanation was given. Santa Clara County Sup. Court Judge Gerald Chargin, 1970 Censured for making racial slurs during a juvenile court hearing. San Francisco Sup. Court Judge Bernard B. Glickfield, 1971 Censured for calling a rape victim a “horse’s ass” in chambers and sentencing one of her convicted attackers to weekends in jail. Los Angeles Municipal Judge Leopoldo Sanchez, 1973 Severely censured for giving a bail bondsman presigned blank bail orders, and for ignoring a warning to halt this practice. Los Angeles Municipal Judge Antonio E. Chavez, 1973 Censured for giving presigned blank bail orders to a bail bondsman. Los Angeles Muncipal Judge Leland W. Geiler, 1973 Removed for prodding a deputy public defender with a dildo in chambers, using profane language and arbitrarily removing public defenders from cases. Victorville Municipal Judge James J. McCartney, 1974 Commission recommended removal in 1973. Supreme Court censured him in 1974 for angrily criticizing deputy public defenders who disqualified him on grounds of prejudice, threatening his clerk with contempt for no apparent reason and letting his bailiff advise him on sentencing. S. Leandro-Hayward Mun. Judge William Spruance, 1975 Removed for soliciting another judge to fix a traffic ticket he had received and making superfluous court appointments to benefit friends and political supporters. Los Angeles Municipal Judge Noel Cannon, 1975 Removed for threatening to give a police officer a “.38-caliber vasectomy” after the officer had stopped her for excessively honking her horn on a downtown street. Also, for ordering the incarceration of defense attorneys who displeased her. Supreme Court Justice Marshall F. McComb, 1977 The commission recommended in 1977 he be removed or forced to retire for “willful and persistent failure to perform his judicial duties.” A special tribunal of seven appellate justices voted that no grounds existed to discipline the judge, who was 82 and senile. They ordered him to retire but added that a judge who leaves the bench this way “shall be considered to have retired voluntarily.” Santa Barbara Superior Court Judge Arden T. Jensen, 1978 Censured for violating a rule requiring cases to be decided within 90 days after submission, and for ignoring previous warnings about the violations. San Diego Municipal Judge Charles Robert Roick, 1978 Forced to retire after he became severely disabled in a motorcycle accident and refused to step down voluntarily. Los Angeles Superior Court Judge Robert S. Stevens, 1981 Censured for making obscene telephone calls to former employees. El Dorado County Court Judge Jerrold L. Wenger, 1981 Removed for abusing his contempt powers, conducting independent investigations of cases pending before him and threatening attorneys. San Diego Superior Court Judge Hugo M. Fisher, 1982 Censured for repeatedly holding private meetings with one attorney in an estate case. Santa Barbara Sup. Court Judge Charles S. Stevens, 1982 Censured for repeatedly using racial epithets in off-the-bench conversations. San Diego Municipal Judge Lewis A. Wenzell, 1982 Commission recommended his suspension without pay in 1981 after he was convicted for soliciting call girls and said he should be removed if his conviction was upheld on appeal. His conviction was overturned but he resigned after a measure to recall him was placed on the ballot. East Los Angeles Municipal Judge Mario P. Gonzalez, 1983 Removed for trying to influence a case in behalf of a friend’s son, making racial slurs and declaring a dog-leash ordinance unconstitutional without holding a hearing. Mono County Superior Court Judge Harry R. Roberts, 1983 Censured for threatening attorneys and intimidating witnesses. He had been convicted two years earlier for interfering with a police officer who had stopped a car that was being driven erratically by his son. Santa Ana Municipal Judge Bobby Youngblood, 1983 Severely censured for jailing a doctor who had criticized him and for presiding in a case while he was involved in separate litigation with one of the parties. Burbank Municipal Judge Marion E. Gubler, 1984 Censured for overzealous efforts to get criminal defendants to reimburse the county for legal services provided by the public defender’s office. Also, for allowing the sale of guns that had been confiscated from a convicted criminal. Fresno Superior Court Judge Robert Z. Mardikian, 1985 Censured for being too slow in deciding cases. Fresno Superior Court Judge Frank J. Creede, 1985 Censured for being too slow in deciding cases. S. Benito Justice Court Judge Bernard McCullough, 1987 Commission initially recommended removal in 1986 but modified that recommendation to censure in response to protests by local officials. Censured in 1987 for delaying decisions, despite three private admonishments. One decision took almost four years. El Dorado Cty. Justice Ct. Judge Eugene Rasmussen, 1987 Severely censured for publicly attacking a coach with a child molestation conviction as a “pervert,” harassing attorneys who sought to disqualify him from cases and being sarcastic and abusive toward parties appearing before him. Catalina Justice Court Judge Robert H. Furey, 1987 Removed for abusing his contempt powers and giving unsolicited advice to another judge in a case from which he had been disqualified. Roseville-Rocklin Municipal Judge Richard J. Ryan, 1988 Removed for fabricating a perjury charge against a defendant who refused a plea bargain and for telling off-color jokes to female attorneys. CASES PENDING BEFORE THE STATE SUPREME COURT

Los Angeles Municipal Judge David M. Kennick Commission recommended last January that he be removed for trying to obtain preferential treatment when he was arrested for drunk driving, and for giving a disproportionate number of court appointments to friends. Ontario Municipal Court Judge Kenneth L. Kloepfer Commission recommended in March that he be removed for insulting court personnel, attorneys and witnesses, abusing his contempt powers and getting personally involved in some of his cases. San Bernardino County Justice Court Judge David Press Commission recommended in July that he be censured for improperly handling two traffic cases and making personal attacks on attorneys appearing in his courtroom. San Benito County Justice Court Bernard P. McCullough In an unprecedented second action against a judge, the commission recommended Oct. 25 that he be removed for improperly directing a jury to return a guilty verdict and for refusing to arraign an old friend accused of obstructing the police.

HOW TO COMPLAIN ABOUT A JUDGE

COMPLAINT: Write to the Commission on Judicial Performance explaining the complaint. The commission is located at 1390 Market St., Suite 304, San Francisco 94102. Its telephone number is (415) 557-2503. SCREENING: An investigating attorney decides that the complaint is not frivolous and concerns issues that are appropriate for the commission to look at. INQUIRY: Preliminary interviews are conducted with the complaining party and other witnesses. Records may be examined. Judge may be contacted. PRELIMINARY INVESTIGATION: The commission, by majority vote, decides to proceed. Witnesses are interviewed. The judge is contacted. Following this stage, commission may decide to issue a private admonishment. FORMAL CHARGE: Commission votes to file formal charges against the judge. FACT-FINDING HEARING: The Supreme Court appoints three “special masters”--judges or retired judges--to take testimony. The masters may find that the judge has engaged in “willful misconduct” or “conduct prejudicial to the administration of justice” or “persistent failure or inability to perform judicial duties.” COMMISSION HEARING: Commission reviews findings of the special masters and decides whether to recommend censure or removal to the Supreme Court. If removal is recommended, the judge is suspended with pay while case is pending. SUPREME COURT ACTION: The Supreme Court takes up the commission’s recommendation and affirms or modifies it--or dismisses the case.