In Sharp Rebuke, State High Court Censures Judge

In a stinging rebuke, the California Supreme Court on Monday publicly censured a Tulare County judge who once ordered an abusive mother to be fitted with a Norplant birth control device.

Superior Court Judge Howard Broadman’s sentencing decisions have brought him national notoriety. They also sparked an assassination attempt in his courtroom after the Norplant case.

Broadman, 48, appointed to the court in 1986 by former Gov. George Deukmejian, once agreed to release a defendant on probation if he would wear a T-shirt saying he was a thief. In another case, he jailed a defendant for being 22 minutes late to court.

The court’s public censure of Broadman is one step short of removal from the bench and can be used against him when the Commission on Judicial Performance, the state’s judicial watchdog agency, considers additional charges pending against the Visalia judge.

It was not Broadman’s sentencing decisions that triggered his censure, however. Instead, the court found that Broadman committed misconduct by discussing pending cases with the media, deceiving a defendant in a sentencing hearing and interfering in a legal malpractice trial against a lawyer the judge detested.

The court’s 36-page, unanimous ruling, citing Broadman’s “lack of candor and integrity,” went beyond the watchdog agency’s finding that the judge had committed prejudicial conduct.

The court found that Broadman had committed the more serious offense of willful misconduct by tricking an HIV-positive rapist into agreeing to postpone his sentencing. After obtaining the rapist’s waiver, Broadman said he wanted the additional time to investigate whether it was possible to order prison authorities to withhold medical treatment.

“This opinion might have a chilling effect on some judges,” said James E. Friedhofer, Broadman’s lawyer. Jurists may now shy away from “innovative” sentences and “are going to be less likely to want to speak to the media regarding anything,” said Friedhofer, who is considering an appeal to the U.S. Supreme Court.

The California Judges Assn. had described Broadman’s case as a test of the judiciary’s independence. The judges feared that the standards used to evaluate Broadman, if upheld, could lead to punishment of other judges for legal errors.

But UC Berkeley law professor Stephen Barnett, who represented the judges association, said the court approved a standard for willful misconduct that is protective of judges.

“The court now makes clear that a judge has to have acted with reckless or utter indifference to his legal powers,” Barnett said. Previously, the standard for willful misconduct had been interpreted as whether the jurist should have known an act was wrong, Barnett said.

Broadman’s novel rulings and unorthodox behavior have made him a national figure and a perennial target of the state’s judicial watchdog agency. He has staunchly defended himself and accused the agency of conducting a “witch hunt” against him.

He first gained notoriety in 1991, when he ordered a 27-year-old pregnant woman to agree to be implanted with the contraceptive Norplant as a condition of probation for beating her children. A few months later, an anti-abortion activist upset with that ruling fired a bullet at Broadman in court. It whizzed past his head, missing him.

Broadman disqualified himself from the Norplant case, but talked to the media about it while it was on appeal. The sentencing decision eventually became moot because the woman violated her probation by using cocaine and went to prison.

By discussing his Norplant sentence and another pending case with the media, Broadman violated a state judicial canon that prohibits judges from making public statements on pending cases.

In an unsigned opinion, the court said judges “must be and be perceived to be neutral arbiters of both fact and law who apply the law uniformly and consistently.”

“By making public comments in an attempt to justify and defend his decisions while those decisions were pending on appeal,” the court said, Broadman “adopted the role of advocate.”

Broadman had argued that the state rule against such media disclosures violated his 1st Amendment rights of free speech. Friedhofer said he may appeal this part of the court’s decision to the U.S. Supreme Court. Unless it is overturned, Broadman’s lawyer said, judges will be too fearful ever to speak to the media.

The state Supreme Court also rebuked Broadman for concealing his reasons in requesting that convicted rapist Levert Hooks and his lawyer agree to postpone sentencing. Their waiver was required because defendants are entitled to be sentenced within 20 days of conviction.

But when the lawyer asked why Broadman wanted a two-month delay, the judge responded: “Trust me.”

Broadman eventually explained that he had heard that it cost the state $100,000 a year to provide medical treatment for HIV-positive inmates. A probation report recommended Hooks be sentenced for 40 years.

“What I have thought of is a potential order . . . that the government doctors shall not be required to provide prophylactic medicine or medicine to treat the incurable disease, but rather shall be required to provide him with food, hydration and pain medication,” the judge told the attorney.

The defense lawyer objected strenuously, and Broadman eventually sentenced Hook to 50 years in prison without any allusion to his medical care.

The Commission on Judicial Performance found that Broadman’s behavior constituted prejudicial conduct rather than willful misconduct because Broadman later admitted that he might have misled the defendant and dropped the sentencing idea.

But the Supreme Court said the record clearly showed that Broadman “tricked” the lawyer and the defendant into agreeing to the postponement. Concealing material information from a lawyer is willful misconduct, the court agreed.

The court also faulted Broadman for offering to help a plaintiff’s lawyer in his legal malpractice case against lawyer Arthur Kralowec. The court said the two men had a relationship of “intense antagonism.” They had been opposing counsel in a case before Broadman’s appointment to the bench.

John Shepard Wiley Jr., a UCLA law professor who represented the judicial performance commission in its case against Broadman, praised the court’s decision.

“No one is happy when a judge is found to have committed serious misconduct,” Wiley said. “But the Broadman decision shows that our system of judicial discipline is working the way the public expects it to work.

Broadman still faces four other charges that could result in more discipline from the Commission on Judicial Performance. They include intimidating a 15-year-old witness and deciding a lawsuit without taking sworn testimony and receiving the consent of the litigants.