Judges Push for Rights in Discipline Cases

     IRVINE, Calif. (CN) – With California’s Commission on Judicial Performance facing unprecedented public and legislative scrutiny, a spate of cases recently brought before the commission were the topic of an animated panel discussion at this weekend’s annual meeting of the Alliance of California Judges.
     Speaking before a packed ballroom at the Doubletree Spectrum hotel in Irvine, lawyers Edith Matthai, Paul Meyer and Heather Rosing gave judges their take on the discipline process and a few of the cases that led to a recent push for an audit of the Commission on Judicial Performance.
     The talk marked the close of the fourth annual conference of the Alliance of California Judges, a group that has made judicial independence its rallying cry since it was formed in 2009.
     Pointing to an August letter from four state lawmakers to the Legislature’s Joint Legislative Audit Committee, Rosing said that while the commission has drawn public ire over claims that it hasn’t been sufficiently harsh in disciplining judges, the gist of the audit request is to make sure judges are actually receiving due process.
     In their letter, the lawmakers cited the recent case of Ventura County Judge Nancy Ayers, who received an advisory letter from the commission for keeping a guide-dog-in-training in her courtroom, despite having been granted permission from her presiding judge. “The Judge Ayers case actually raises the question of whether the commission is giving judges due process rights,” Rosing said.
     Ayers’ advisory letter was eventually withdrawn after Ayers appealed and the California Supreme Court dismissed the case.
     “The majority of the time they do get it right,” Rosing said. “But from my perspective there definitely is that handful of cases where they get it just dead wrong. The Ayers case was one.”
     Matthai, who represented Ayers, said the facts of the case made it a perfect candidate for a challenge to the Supreme Court.
     Ayers had been training guide dogs for six years, and with the consent of the presiding judge and the judiciary’s central bureaucracy, began bringing an eight-month black Labrador retriever named Frank to her courtroom. No one objected until she presided over a criminal case involving a third-strike felon who, unhappy with Ayers’ ruling in his case, complained to the commission about the dog.
     “The dog absolutely did not disturb anything and Ayers did not pay attention to the dog,” Matthai said, noting that both the defense attorney and prosecutor said Frank was not a distraction and that Ayers had paid full attention to the case.
     The commission disagreed and sent Ayers a “stinger” letter, the lowest form of discipline it can administer, finding that Ayers had violated one of the judiciary’s ethical canons.
     Matthai said the case highlighted some critical issues in the discipline process.”There were some fundamental issues that went way beyond whether or not a dog should be there,” she said. “How this process works, how much evidence you have to have before discipline should be imposed on a judge. Is discipline appropriate when you had permission from your judges and the AOC – should the judge then be subject to actual discipline for that conduct?”
     As the commission prepares to undergo a biennial review of its rules, judges have pushed for a more transparent system. Currently, a judge is informed that an accusation has been made against them but is provided only cursory information about the allegation, is not told who made the accusation, and is given no discovery at all unless the case goes to trial.
     One case that went to formal proceedings was that of Judge Edmund Wilcox Clarke, who was publicly admonished last month by the commission for comments he made to several prospective jurors in his Los Angeles courtroom during jury selection for a gang-related murder trial involving four defendants.
     The commission overruled findings by three special masters – a panel comprising one appellate justice and two judges- that Clarke had not acted improperly in all but one charge.
     The Alliance of California Judges submitted a brief supporting Clarke, but the commission shot down its arguments – among them that the commission should have honored the special masters’ findings and that Clarke’s actions could have been handled locally by his presiding judge.
     Clarke is appealing his case to the state Supreme Court.
     In submitting proposed rule amendments to the commission, another judges group, the longstanding California Judges Association, has suggested that the commission be bound by the findings of fact and conclusions of law issued by the special masters.
     Meyer said this comes with its own set of problems.
     “I don’t see it as all or nothing,” he said. “I don’t see a situation where the rule has to be that the CJP has the absolute authority to overrule what the masters are finding or where the CJP is bound by what the masters are finding.”
     Meyers added, “We don’t look at the CJP as an autocratic ‘my way or the highway’ institution. We think they are people trying to do a job they think is reasonable.”
     While the commission has consistently rejected the push for more transparency and more deference to the special masters, Meyers said judges should not abandon their efforts to change the system.
     “Can you force them to do it? No. But with good will and intelligence, over time people tend to shift. What we’re seeing with the audit and rules changes input is, that if the CJA and Alliance are willing to craft opinions or recommendations, the drumbeat of change will start to be heard.”
     Matthai said that support from other judges is critical, like the Alliance’s brief on Clarke’s behalf. “Picking a jury in a four-person gang trial isn’t a walk in the park. The CJP can get a bit removed from the reality of what’s going on when you’re engaged in that process and there are a thousand different things pulling at you, and that’s a place where other members of the judiciary can add factual support.”

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