The new makeup of the state Commission on Judicial Performance, overhauled by a voter initiative in November, has made many judges leery of being judged by appointees chosen for political leanings over competence.
The panel now includes an outspoken victims-rights advocate who has campaigned against lenient judges, a former state coastal commissioner who himself was investigated for alleged ethical lapses, and the law office manager for Assembly Speaker emeritus Willie Brown.
“The anxiety levels have been touched, that’s for sure, with the appointment of some of these people,” said Los Angeles Municipal Judge Rudolph A. Diaz, head of the California Judges Assn.
Even law professors who had favored the remake are uncomfortable with the lineup. The ballot measure was inspired by criticism that the former commission was too lenient and secretive when assessing complaints about judges.
“You ought to be putting in strong, independent people with longstanding reputations for integrity who are basically not influenced by political considerations,” said Robert C. Fellmeth, director of the Center for Public Interest Law at the University of San Diego Law School. “You don’t want people who are your political friends or people who work in your office.”
The commission, based in San Francisco, decides whether to reprimand or remove judges it finds guilty of misconduct. Discipline can be invoked for judges who rule despite blatant conflicts of interest, who engage in inappropriate behavior, such as sexual harassment, or who behave loathsomely in the courtroom.
Proposition 190 raised the commission’s membership from nine to 11, gave non-lawyers a majority and empowered the panel to make its own rules and boot judges from office without the approval of the California Supreme Court.
The governor, Speaker of the Assembly and Senate Rules Committee each were allotted two appointments of public members, a process that some critics complain may have politicized the new panel. Harriett Salarno, appointed by Gov. Pete Wilson, is among the appointees who have raised eyebrows.
Salarno is a major force in the victims-rights movement in California. She founded Justice for Murder Victims, a support group, appealed for tougher sentences and worked to unseat judges she thought were too lenient, including former state Supreme Court Chief Justice Rose Bird.
Formerly a dental hygienist, Salarno helped launch the victims-rights movement after her college-age daughter was murdered in 1979 by a man she had spurned. The murderer’s family still lives across the street from the Salarnos in San Francisco. The man was convicted of second-degree murder, a verdict that disappointed Salarno.
“I definitely have some misgivings about Harriett Salarno,” said San Francisco Chief Assistant Public Defender Peter Keane, one of the architects of Proposition 190, “because of the ideological perspective she brings.”
Although the commission cannot punish judges solely for being liberal, Salarno noted that conduct can be the basis of discipline and “conduct does relate to decisions.” Public safety, she said, “should be the judges’ No. 1 priority.”
She complained about American Civil Liberties Union attorneys who nag, “Don’t infringe on this, don’t infringe on that,” and insisted that the commission could have found a way to discipline Bird for reversing death and life-without-parole sentences. Voters ejected Bird from the court.
Salarno’s attitudes may worry Keane and others, but conservative judges might take heart. She seemed almost sympathetic to Tulare County Superior Court Judge Howard R. Broadman, who is being investigated by the commission for a variety of alleged misdeeds, including ordering a convicted child abuser to wear a Norplant birth control device as a condition of probation.
The Broadman case will be the first major disciplinary matter to reach the new commission since the ballot measure took effect in March. The closely watched probe was instigated by the previous commission.
Salarno said she could not discuss Broadman because his case is pending, but volunteered that she understood he is “very popular in Tulare County” and described his alleged misconduct as motivated by an effort “to stop crimes being done in the future.” Other victims-rights advocates are behind him, she said.
Even though overhaul of the commission was done in part to get tough on judges, Salarno contends that the new panel will not be any more prone to discipline. “We will be fairer,” Salarno said.
Judges had the majority vote on the previous panel, and reformers blamed that balance for the commission’s perceived leniency. Salarno said the judges now on the panel seem even more punitive than the lay members. She said she was startled to learn that judges in the past have been disciplined for mistakes she found trivial.
“There are things I never would have disciplined them for,” she said.
She cited two recent cases as examples of behavior she found inconsequential and said the commission dismissed both. In one, the panel was asked to consider disciplining a judge for being late to court. “Why would you punish a guy for being late for having a cup of coffee?” she asked incredulously.
In the other, a judge faced the prospect of a disciplinary advisory letter “just because he said he didn’t like the way a girl was dressed in court.”
Commissioner David Malcolm agrees with Salarno that such offenses do not deserve punishment. Appointed by former Speaker Brown, Malcolm served for several years on the state Coastal Commission and knows what it feels like to be investigated for possible misconduct.
After a three-year probe by the California Fair Political Practices Commission into allegations that he used his position to benefit himself and his friends financially, Malcom was not cited for any wrongdoing. Malcolm was also investigated over an allegation that he planned to blow up a house to collect insurance. No charges were ever brought against him.
“In a strange sort of way,” said former Coastal Commission Chairman Melvin Nutter, a lawyer in Long Beach, “he perhaps brings balance to a commission that is supposed to deal with ethics, given his background.
“What I mean by that is that his pattern and history as a coastal commissioner and elsewhere . . . awarded him with a lot of controversy involving questions about his own personal ethics and behavior.”
Malcolm, 41, who owns a mortgage banking business in San Diego, dismissed the probes as nothing more than misguided examinations of false allegations.
“Were there claims that I had a property and financial interest in things I voted on?” he said. “Yes. Were they proven wrong? Yes.”
Malcolm said he will not punish judges for offenses he considers minor. “I really believe that before I ruin someone’s life, they need to have stepped over the line,” he said. “Look at poor Judge [Lance] Ito. We have had so many complaints about him it’s not funny. We’ve had numerous, horrible racial calls. People just get upset over watching things on television.”
Besides Malcolm, the former Speaker appointed his San Francisco law office manager, Eleanor Johns, to the commission. “One has to wonder whether she is too close to the former Speaker to have the independence required for the job,” complained UC Berkeley law professor Steve Barnett. Johns did not return several calls from The Times.
The other non-lawyer members are Chris Felix, an Orange County real estate developer who was reappointed by Wilson, and Senate Rules Committee appointees Pearl West, director of the California Youth Authority under Gov. Edmund G. (Jerry) Brown Jr., and Ophelia Basgal, executive director of the Alameda County Housing Authority.
Some of the judges’ consternation over this group stems from a fear that such lay panelists will be unable to distinguish between technical legal error and outright misconduct or will allow personal views to influence evaluations.
“They haven’t had that much of an opportunity to really show their colors yet,” Diaz said.
While critical of some of the appointments, Barnett said the biggest problem with the commission may be that it has not had a changeover of staff along with commissioners. He worries that the staff, condemned previously for being soft on judges, may have overreacted to the criticism.
“As one who thought the old commission was too protective of judges,” he said, “I have to say it’s time to sound the alarm over the new commission.” He called the commission’s investigation into Judge Broadman “a witch hunt.”
“It targets a judge mainly for being innovative and politically incorrect,” he said.
Besides ordering a child abuser to wear Norplant, Broadman is being investigated for discussing the Norplant case with the news media while his order was pending on appeal and allegedly considering withholding medical treatment to an HIV-infected rapist he was sending to jail.
The commission is expected to review the Broadman case within the next several months.
“Cases like the Broadman case are going to delineate which way the commission is going to go,” said San Francisco defense lawyer Ephraim Margolin, who has represented 79 judges before the commission during the past 12 years. “It will tell us how far the commission is pushing the envelope.”