2013 Cal. Comm. Jud. Perform. LEXIS 1
State of California Commission...2013Background
- Judge Bruce C. Mills (Contra Costa County Superior Court) sought to resolve an October 4, 2011 OSC concerning his minor son’s failure to complete court-ordered volunteer work after the son entered an out-of-state residential program.
- The son’s retained attorney became unavailable the morning of the hearing; Mills went to Department 59 clerk Jane Sims and later met pro tempore Judge Helen Peters in chambers before the public calendar began.
- Mills told the clerk and the pro tem judge his desired disposition (credit for time in the residential program), showed supporting program documents in a nonpublic area, and the pro tem granted “credit for time served” off the record.
- The commission’s special masters found the factual account credible; the Commission adopted the masters’ factual findings.
- The Commission concluded Mills engaged in prejudicial judicial misconduct by using nonpublic channels and his judicial stature to influence the handling of a family member’s case and imposed a public admonishment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mills’s off‑record contacts with clerk and pro tem judge violated judicial canons and constituted misconduct | Examiner: communications in nonpublic areas and off‑record disposition created appearance/use of judicial office to influence — prejudicial misconduct | Mills: acted as a concerned parent, followed available channels, did nothing improper; any disposition would have been same in open court | Held: Mills engaged in prejudicial misconduct — used prestige of office, created appearance of impropriety; violated canons 1, 2, 2A, 2B(2) |
| Whether contacts were merely improper action (lesser) or prejudicial misconduct (greater) | Examiner: conduct, even if not in bad faith, would appear to an objective observer as prejudicial to public esteem | Masters: characterized as improper action; not prejudicial | Commission: disagreed with masters’ legal conclusion and elevated to prejudicial misconduct |
| Whether ex parte communications rule (canon 3B(7)) was violated | Examiner charged canon 3B(7) violation | Mills argued no ex parte because only his son was the party and DA policy meant no prosecutor would appear | Held: No violation of canon 3B(7); masters’ conclusion adopted by Commission |
| Appropriate discipline given misconduct and prior record | Examiner sought public discipline; emphasized appearance problems and subordinates’ pressure | Mills minimized impropriety; noted result likely same and acted as parent; offered character witnesses | Held: Public admonishment imposed — aggravation: prior discipline, failure to appreciate impropriety, use of subordinates; mitigation: likely same result, acted as parent, character testimony |
Key Cases Cited
- Broadman v. Commission on Judicial Performance, 18 Cal.4th 1079 (clarifies burdens and categories of judicial misconduct)
- Adams v. Commission on Judicial Performance, 10 Cal.4th 866 (objective‑observer test for prejudicial conduct)
- Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865 (failure to acknowledge impropriety evidences lack of capacity to reform)
- Kloepfer v. Commission on Judicial Performance, 49 Cal.3d 826 (prior discipline relevance and judge’s obligation to the Commission)
- McCullough v. Commission on Judicial Performance, 49 Cal.3d 186 (failure to respond to prior discipline as aggravation)