Formal Removal of Retired Judge Kennick Ordered

The state Supreme Court on Thursday ordered the formal removal of retired Los Angeles Municipal Judge David M. Kennick for prolonged absences from the bench and censured the jurist for other improper conduct.

The court, unanimously upholding a recommendation by the state Judicial Performance Commission, barred Kennick from holding future judicial office and suspended him from practicing law, at least temporarily.

Ruling in a novel and procedurally tangled dispute, the justices rejected Kennick’s contention that the disciplinary proceedings should be dismissed as moot because of his voluntary retirement in July, 1988.

The court pointed out that retirement did not bar his future eligibility for a judgeship, nor determine whether he could continue to practice law. Kennick, 52, had offered to stipulate he would not seek office and would accept suspension from the practice of law. But the court noted his offer did not preclude his seeking reinstatement as a lawyer, and concluded it should resolve the charges against Kennick now.

In a 72-page opinion signed “by the court,” the justices held that Kennick’s repeated “failure or inability” to appear for work warranted removal.

Citing findings by the commission, the court said that Kennick had been absent for 95 days from March, 1985, through December, 1986. He did no work from January to May, 1987--the month he testified in the commission’s inquiry--nor did he make any attempt to take the bench thereafter, the court said.

In his defense, Kennick said that in 1985 and 1986, he took 57 days of vacation and was sick for 27 days, leaving 11 days unaccounted for. But, the court said, his failure to work since 1987 came without explanation “other than vague references” to medical treatment for high blood pressure, stress and severe depression.

“We conclude that (Kennick’s) excessive absences from work in 1985 and 1986 and his cessation of work altogether at the beginning of 1987 . . . constituted persistent failure or inability to perform his judicial duties,” the court said.

Thursday’s decision was described as a “landmark” by Jack E. Frankel, chief counsel for the commission, who said it was the first time that a judge has been removed solely for “failure or inability” to perform duties. In only 10 previous cases has removal itself been ordered in the 30-year history of the commission, he said.

“This also means that even in the rare occurrence when a judge has retired, the court is still willing to adjudicate the issues that have been raised,” Frankel said.

The justices cited Kennick for a broad range of other acts they said warranted censure but could not serve as grounds for removal.

The court held the judge responsible for conduct “prejudicial” to the administration of justice in being rude and uncooperative when he was arrested by California Highway Patrol officers for drunk driving in 1985 and refused to take a field sobriety test.

Similarly, Kennick improperly sought preferential treatment when, according to a CHP officer, he suggested that the paper work on the arrest “could get lost” before the case went to court, the justices said. Kennick later pleaded no contest to the charge.

However, the court found that while Kennick’s actions were “reprehensible,” there was insufficient evidence he was acting in a “judicial capacity” when he sought favorable treatment. Further, it said, Kennick took no further steps to avoid being prosecuted. Thus, he could not be cited for the more serious disciplinary offense of “willful misconduct,” the court said.

Reviewing other charges, the court held the judge responsible for “prejudicial” conduct in being rude, demeaning and abusive to lawyers and litigants and in improperly favoring attorney-friends with appointments to represent indigents in court.

The court ordered Kennick suspended from practicing law until he has passed the State Bar’s professional-responsibility exam.

Kennick, a former Los Angeles County deputy district attorney, was appointed to the bench in 1972 by then-Gov. Ronald Reagan and won election by the voters in 1974, 1980 and 1986. Since retiring, he has been denied disability benefits but is otherwise eligible for a judicial pension, according to the commission. Kennick’s attorneys could not be reached for comment.