Judges Flout Law on Closed Disciplinary Hearings, Lungren Says

Six years after California voters enacted a measure calling for greater public access to judicial disciplinary proceedings, “an open hearing has yet to be conducted in this state,” Atty. Gen. Dan Lungren said this week as he urged support for legislation to strip away the veil of secrecy from inquiries into judges’ conduct.

In letters to legislators, Lungren said the system has thwarted the will of voters who in 1988 enacted Proposition 92, which called for open judicial disciplinary hearings if the charges involved “moral turpitude, dishonesty or corruption.”

Judges charged with such acts by the Commission on Judicial Performance have avoided public hearings after they “sought and received some form of secret writ relief from other courts of record in this state,” Lungren said in his June 7 letter. “This complete frustration” of constitutional provisions concerning open hearings raises “troubling questions regarding the functioning of California’s judicial disciplinary procedures.”

He said the secret hearings also raise “a disturbing appearance of impropriety: the specter of judges throughout this state” using their power in sealed proceedings to protect their judicial colleagues.

Without naming names, Lungren detailed four cases. In one instance, a closed hearing was ordered by judges who ruled that an accused judge’s reelection prospects and reputation would suffer serious harm if the public discovered before an election that the judge had been accused of conduct, involving moral turpitude, dishonesty or corruption.

“Inherent in these rulings was the conclusion that the accused judge’s political interests outweighed any interest the voters might have before they cast their ballots in learning the truth: that this judge had been charged with serious misconduct,” Lungren wrote.

A system of completely open formal proceedings is not only valuable for reasons of good government, but also will better protect complaining witnesses from judicial retaliation in these cases and ensure full and accurate fact-finding, Lungren wrote. “The present system of confidentiality in formal proceedings is clearly unworkable and is impairing the ability of the system to accomplish its goals.”

Lungren, who is seeking reelection, wrote in support of measures introduced by state Sen. Alfred E. Alquist (D-Jose) and Assembly Speaker Willie Brown (D-San Francisco).

Both measures would require that disciplinary proceedings conducted by the Commission on Judicial Performance be held in public once formal charges are filed, eliminate the judge majority on the commission by adding more citizen members and attempt to curb secret “satellite litigation” about when and whether hearings will be open to the public.

“The premise of the bills is the same--to end this elite Star Chamber system that no one has any confidence in anymore, except perhaps the judges,” said Gene Erbin, counsel to the Assembly Judiciary Committee.

The bills reflect intense frustration with the commission, considered a path-breaking agency when it was created in 1961. In recent years, though, the commission has been severely criticized for meting out little discipline and for conducting the vast amount of its work in secret.

In its 33-year history, the commission has held a public hearing in only one judicial discipline case.

Commission records state that although the number of complaints against judges went from 260 in 1980 to 950 last year, the number of judges disciplined rose hardly at all--from eight to 10. The largest number of judges disciplined by the commission in a single year was 18 in 1989.

Commission officials generally have taken the position that the lack of discipline simply reflects the overall high quality of the state’s judges.

The commission is composed of five judges appointed by the state Supreme Court, two lawyers appointed by the State Bar and two members of the public appointed by the governor.

Both the Alquist and Brown bills would require amending the California Constitution. Hearings on both bills are scheduled for next week in Sacramento. Passage would require a two-thirds vote in the Legislature, and then a majority vote in a general election.

The California Judges Assn. and the commission oppose the bills.

The commission does not oppose all open hearings but wants to reserve the right to close some under certain circumstances, commission general counsel Victoria B. Henley said.

“If a change is to be undertaken now, the commission would not support having all proceedings open from the filing of formal charges, as proposed,” Henley said in a letter to Alquist. “It has been the commission’s experience that closed hearings can be appropriate and should be retained in some instances.”

Ventura County Superior Court Judge Steven Z. Perren, who is vice president of the judges association, said there is no need for hasty action, though he acknowledged that the state’s current system “is under fire.” He said that Chief Justice Malcolm Lucas has appointed a special committee to examine the issue of judicial discipline in the state and is scheduled to report in September. He also said the American Bar Assn. is preparing a set of model rules for judicial disciplinary procedures.

Perren said judges felt the Legislature should not act until the state commission and the ABA have issued their reports.

“There is a tremendous concern among the judges that once damned, they are always damned,” Perren said.

Lungren said he believes that secrecy should be maintained during the investigatory phase of disciplinary proceedings. But he said that once preliminary investigation has been completed and formal charges are filed, secrecy should end:

“The complete elimination of confidentiality at the stage of formal proceedings . . . is long overdue.”