Overprotected Judiciary

California once was a trailblazer in the field of judicial discipline. The state Commission on Judicial Performance, established in 1961, was the first agency in the nation created expressly to investigate judicial misconduct and to recommend sanctions against offending judges.

But California is no longer in the vanguard when it comes to judicial discipline. Because of persistent lobbying by the state’s judges, the activities of the Commission on Judicial Performance are so shrouded in secrecy that voters have no way of knowing whether a complaint is pending against a judge who is up for reelection. The commission usually refuses even to acknowledge that an investigation is under way. Hearings are closed. And witnesses are routinely warned that all proceedings before the commission must remain confidential, though such gag orders are of dubious constitutionality. The result is that the commission set up to protect Californians from dishonest, derelict or openly corrupt judges instead protects the judges.

The original justification for such secrecy--that judges are often the targets of trivial or malicious complaints from unhappy litigants--has some validity, but only in the early stages of an investigation. Once the commission has found “probable cause” of misconduct and filed formal charges, the proceedings should be conducted in public, just like a criminal trial. Such a standard would bring California into conformity with the progressive policies of the 24 states that open judicial disciplinary proceedings to the public as soon as “probable cause” is established.

In California the secrecy is so pervasive that most cases against judges remain confidentialeven after the commission has finished its work.As a rule, only the investigations and hearingsthat result in recommendations of discipline to the California Supreme Court--like public censure or removal from the bench--are ever made public. Lesser punishments, including admonishment by the commission itself, remain private; in such cases even the complaining party is told only that “appropriate action” has been taken. Such secrecy leads to clear abuses that raise questions about the effectiveness and the integrity of the commission itself, as Times staff writer Terry Pristin recently documented. Just this past June, for example, a San Bernardino County justice court judge won his primary election despite the commission’s recommendation, two months previously, that he be publicly censured for verbally attacking an attorney in court; the recommendation was kept from the public first by the commission itself, and then by the Supreme Court. And, in the most notorious case of all, the commission never explained why it decided that no charges should be brought against members of the Supreme Court accused of delaying politically sensitive decisions until after the 1978 election of Chief Justice Rose Elizabeth Bird.

The current chairman of the commission leans toward public hearings, but the California Judges Assn. wants to pull the cloak of secrecy even tighter. The association urges that disciplinary recommendations be kept secret until the Supreme Court has taken action--a proposal that has been rejected by an advisory committee to the state Judicial Council. But the political clout of the judges should not be underestimated. Judges succeeded this year in eviscerating Proposition 92. As originally drafted by state Sen. Ed Davis (R-Valencia), the proposition would have mandated open hearings once formal charges had been filed. What voters finally approved was a toned-down version that will permit public hearings in only a tiny number of cases--those in which the judge requests an open hearing (an unlikely turn of events) or is charged with moral turpitude or corruption.

The distinctions of Proposition 92 make very little sense. If a judge is formally charged with a violation of the Code of Judicial Conduct, no matter what provision, the public should be made aware of it. Despite their need for independence, courts are not sacrosanct. And affording misbehaving judges more protection from public scrutiny than other officeholders or criminal defendants get only diminishes public respect for the courts.