81 Cal.App.5th 248
Cal. Ct. App.2022Background
- Plaintiff Floyd Chodosh, a party in Orange County litigation, complained (2016) to the Commission on Judicial Performance that Judge Robert Moss engaged in judicial misconduct; the Commission acknowledged receipt but took no publicly disclosed action.
- Chodosh also wrote to the California Attorney General, who declined to investigate individual matters for lack of resources and suggested contacting local prosecutors.
- Chodosh alleged the Commission and Attorney General systematically conceal and fail to refer "judge crime" to prosecutors, relying on Commission confidentiality rules (rule 102) and Policy 4.2 to shield judges.
- Initial complaint pleaded declaratory and taxpayer causes of action; trial court sustained demurrers to the declaratory claims without leave to amend and allowed amendment of taxpayer claims.
- Second amended complaint narrowed to statutory and common-law taxpayer suits against the Commission and the Attorney General; the trial court sustained defendants’ demurrer without leave to amend and entered judgment for defendants.
- On appeal, the court affirmed, holding Chodosh failed to allege facts showing (1) a constitutional right of access to the requested Commission statistics, (2) a mandatory duty to report alleged judge crimes to prosecutors, (3) a separation-of-powers violation, or (4) viable taxpayer standing against either defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Constitutional right of access to Commission statistical referral data (Cal. Const. art. I, §3) | Chodosh: article I, §3(b) grants public access to information about the Commission’s referrals; he seeks 21 years of annual counts showing referrals to prosecutors. | Defendants: confidentiality provisions in art. VI, §18(i) and rule 102 protect pre‑formal‑proceeding materials; requested statistics could identify cases/judges and reveal deliberative processes. | Held: No right of access to the requested statistics; confidentiality exception (art. VI, §18 and rule 102) applies and plaintiff did not plead that Commission's interpretation was clearly erroneous. |
| 2. Mandatory duty to report "judge crime" to prosecutors (Canon 3D(1), rule 102(g), Policy 4.2) | Chodosh: Canon 3D(1) (under the Code of Judicial Ethics, made pursuant to art. VI, §18(m)) imposes a mandatory reporting duty; Commission and AG therefore must refer criminal conduct to prosecutors. | Defendants: Canon 3D(1) is discretionary/advisory, does not have the force of law to mandate reporting to criminal authorities; rule 102(g) and Policy 4.2 expressly give the Commission discretion to refer. | Held: Canon 3D(1) does not impose a mandatory duty to report criminal conduct in all circumstances; rule 102(g) and Policy 4.2 permit Commission discretion. |
| 3. Separation of powers — Commission usurps AG prosecutorial authority | Chodosh: By receiving complaints and deciding whether to refer them, the Commission effectively decides prosecutorial matters, usurping executive power. | Defendants: The Commission investigates judicial conduct and may refer information, but it does not prosecute or decide prosecutions; prosecutorial duty rests with the executive (district attorneys/AG). | Held: No separation‑of‑powers violation; Commission’s investigatory/referral discretion does not equate to exercising prosecutorial authority. |
| 4. Taxpayer standing (Code Civ. Proc. §526a & common law) to challenge Commission/AG policies | Chodosh: Taxpayer suit is proper to enjoin alleged misuse of public funds and failure to protect public from judicial corruption; the Commission/AG have mandatory duties they refused to perform. | Defendants: Taxpayer suits require a specific, non‑discretionary duty or allegations of fraud/collusion/ultra vires acts; here the Commission/AG exercise discretion and plaintiff’s allegations are conclusory. | Held: Demurrer sustained; plaintiff failed to plead a non‑discretionary duty or sufficient facts (fraud/collusion/ultra vires) to support taxpayer claims. |
Key Cases Cited
- Adams v. Commission on Judicial Performance, 8 Cal.4th 630 (Cal. 1994) (explains confidentiality policy for Commission investigations and that canons generally do not have force of law)
- Commission on Judicial Performance v. Superior Court, 156 Cal.App.4th 617 (Cal. Ct. App. 2007) (rule 102 makes pre‑formal proceedings confidential; public disclosure required after formal charges)
- Recorder v. Commission on Judicial Performance, 72 Cal.App.4th 258 (Cal. Ct. App. 1999) (discusses Proposition 190 and Commission confidentiality rule authority)
- Mosk v. Superior Court, 25 Cal.3d 474 (Cal. 1979) (Commission authority to investigate complaints of judicial misconduct)
- McComb v. Superior Court, 68 Cal.App.3d 89 (Cal. Ct. App. 1977) (Commission has no authority to prosecute criminal offenses)
- Dix v. Superior Court, 53 Cal.3d 442 (Cal. 1991) (prosecution of criminal offenses is the responsibility of public prosecutors)
- Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865 (Cal. 1998) (canons reflect ethical standards and do not themselves create law)
- Pineda v. Williams‑Sonoma Stores, Inc., 51 Cal.4th 524 (Cal. 2011) (standard of review on demurrer; accept properly pleaded facts but not conclusions)
- State of California ex rel. Dept. of Rehabilitation v. Superior Court, 137 Cal.App.3d 282 (Cal. Ct. App. 1982) (Article V, §13 imposes a discretionary duty on the Attorney General to enforce the law)