G. DENNIS ADAMS, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.
No. S042149
Supreme Court of California
July 20, 1995
8 Cal.4th 866
Lewis, D‘Amato, Brisbois & Bisgaard, Douglas R. Reynolds, James E. Friedhofer, Susan E. Leonard, Wingert, Grebing, Anello & Brubaker and Charles R. Grebing for Petitioner.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Laura Whitcomb Halgren, Deputy Attorneys General, for Respondent.
THE COURT.—The Commission on Judicial Performance (Commission) has filed in this court its recommendation that G. Dennis Adams, a judge of the Superior Court of San Diego County (petitioner), be removed from office. (See
We conclude, after independently reviewing the record, that petitioner‘s due process challenge to the disciplinary proceedings before the Commission has no merit, and that the record supports all of the charges of wilful misconduct and most (but not all) of the charges of prejudicial conduct, and also establishes improper action. With respect to the appropriate discipline, we uphold the recommendation of the Commission that petitioner be removed from office.
I
Petitioner was a judge of the Municipal Court of San Diego County, El Cajon Judicial District, from December 16, 1975, to March 9, 1979, was appointed to the Superior Court of San Diego County in 1979, and was elected and reelected to the superior court for successive terms in 1980, 1986, and 1992.
On December 10, 1992, following an extensive preliminary investigation (
In October and November 1993, three special masters5 appointed by this court held a seventeen-day evidentiary hearing on the issues presented (
II
In Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297 [267 Cal.Rptr. 293, 787 P.2d 591, 87 A.L.R.4th 679], we summarized the applicable standards governing our review of a disciplinary recommendation of the Commission. Under the California Constitution, a judge may be censured publicly or removed from office for action that constitutes “wilful misconduct in office” or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” and may be admonished privately if found to have engaged “in an improper action or a dereliction of duty. . . .” (Art. VI, § 18, former subd. (c)(2).)8
“Wilful misconduct in office” has two elements: the judge‘s misconduct must be wilful, i.e., done with malice or in bad faith, and it must be committed in office, i.e., while acting in a judicial capacity. The element of malice or bad faith, in turn, must meet a two-pronged test: the judge must
Prejudicial conduct, or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” (art. VI, § 18, former subd. (c)), may be committed by a judge either while acting in a judicial capacity, or in other than a judicial capacity. (Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at p. 314.) The provision that the conduct must be that which “brings the judicial office into disrepute” does not require actual notoriety, but only that the conduct, if known to an objective observer, would appear to be prejudicial to public esteem for the judicial office. (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 284 [110 Cal.Rptr. 201, 515 P.2d 1].) Unlike wilful misconduct, prejudicial conduct does not require the presence of bad faith, but may occur when a judge, though acting in good faith, engages in conduct that adversely would affect the esteem in which the judiciary is held by members of the public who become aware of the circumstances of the conduct. (Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d 826, 832; McCullough v. Commission on Judicial Performance (1989) 49 Cal.3d 186, 191 [260 Cal.Rptr. 557, 776 P.2d 259].) The subjective intent or motivation of the judge is not a significant factor in assessing whether prejudicial conduct has occurred under this standard. (Gonzalez v. Commission on Judicial Performance (1983) 33 Cal.3d 359, 376 [188 Cal.Rptr. 880, 657 P.2d 372].) Although a judge may perform the necessary judicial functions diligently, competently, and impartially, his or her inability to discern (and thus to avoid) extrajudicial activities that reasonably would be perceived as damaging to the judiciary may place that judge‘s fitness for judicial office in doubt.
The canons set forth in the California Code of Judicial Conduct are relevant to the determination whether a judge‘s actions constitute “conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” in that the canons reflect a consensus as to the standards of conduct and appropriate behavior to which judges properly should be held. (Adams I, supra, 8 Cal.4th at pp. 661-662.) “The failure of a judge to comply with the canons ‘suggests performance below the minimum level necessary to maintain public confidence in the administration of justice.‘” (Id. at p. 662.)
The acts of misconduct charged in the present proceeding are alleged to have occurred while the 1975 version of the Code of Judicial Conduct was in
Former canon 2 provided that a judge should avoid impropriety and the appearance of impropriety in all of the judge‘s activities and, as a consequence, must accept restrictions on his or her conduct that might be viewed as burdensome by the ordinary citizen. Former canon 2B provided that judges “should not lend the prestige of their office to advance the private interests of others; nor should judges convey or permit others to convey the impression that they are in a special position to influence them.” Former canon 5C(1) provided that judges “should refrain from financial and business dealings that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, exploit their judicial position, or involve them in frequent transactions with lawyers or persons likely to come before the courts on which they serve.”
A significant portion of the charges against petitioner involve petitioner‘s alleged acceptance of gifts, financial benefits, or preferential treatment from attorneys or law firms that appeared before petitioner, and from a litigant in a case over which petitioner presided. The canons, as well as other rules and regulations, pertaining to and governing the propriety of the acceptance of gifts by judges, are therefore particularly apposite to our review of the charges in the present case. Former canon 5C(4) provided that, in general, judges should not accept gifts if the donor is a party or other person whose interests have come or are likely to come before the judge, subject to specified exceptions. Recently, in our decision in Adams I, we noted that a judge‘s acceptance of gifts from those whose interests appear before the court bears an obvious appearance of impropriety, “‘is inherently wrong,‘” and “‘has a subtle, corruptive effect, no matter how much a particular judge may feel that he is above improper influence.‘” (Adams I, supra, 8 Cal.4th at p. 663.)
One of the specified exceptions under former canon 5C(4) to the prohibition against acceptance of gifts from those whose interests have (or are likely
The
In reviewing the report and recommendation by the Commission, this court independently evaluates the evidence taken in the Commission proceedings and must sustain the charges of misconduct if there is clear and convincing evidence sufficient to prove them to a reasonable certainty. (Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at p. 314.) In resolving disputed issues of fact, we give special deference to the determinations of the special masters, who were best able to evaluate the credibility of the witnesses appearing before them. (Id. at pp. 314-315.) We must then determine whether the conduct found to have occurred is a basis for censure or removal and, if so, the appropriate sanction. In making the latter determinations, we accord great weight to the conclusions of the Commission, recognizing the expertise of the Commission in matters involving judicial conduct. (Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d at p. 832; McCullough v. Commission on Judicial Performance, supra, 49 Cal.3d at p. 191.)
III
Before turning to the specific evidence against petitioner and the merits of the Commission‘s findings and conclusions, we shall address petitioner‘s threshold contention that the disciplinary proceedings before the Commission were tainted by a lack of neutrality and a strong probability of bias
Petitioner contends that the Commission‘s combined roles as investigator, prosecutor, and adjudicator, as well as litigation adversary, created an unacceptable risk of actual bias on the part of the Commission, thereby denying him his right to due process. He maintains that the administrative procedures governing the proceedings before the Commission, in conjunction with the Commission‘s efforts (collateral to its determination of the merits of the charges) to validate its order opening the proceedings to the public, resulted in an unconstitutional risk of a biased decisionmaker, because the Commission did not remain a neutral body but assumed an adversarial role during the investigatory and adjudicatory stages.
Petitioner acknowledges that we rejected a somewhat similar argument in Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d at pages 833-835, in which the subject of judicial disciplinary proceedings raised a due process challenge to the Commission‘s role in the disciplinary proceedings. The judge in Kloepfer complained, as does petitioner, that the Commission did not provide a neutral forum, because the accusatory, investigatory, and adjudicatory functions were combined so that the adjudicatory process did not comport with generally accepted standards of due process.
In examining this argument in Kloepfer, we turned to the principles articulated by the United States Supreme Court in Withrow v. Larkin (1975) 421 U.S. 35 [43 L.Ed.2d 712, 95 S.Ct. 1456]. In Withrow, the court observed that, in order to prevent unfairness, our legal system refuses to tolerate proceedings in which the risk of actual bias on the part of the decisionmaker is inconsistent with the guarantee of due process. In Withrow, itself, however, the court rejected a challenge to the procedures of a medical licensing board that possessed both investigatory and adjudicatory functions, concluding that, in general, it is appropriate to presume the integrity of those serving as adjudicators in an administrative proceeding, and, accordingly, that a challenge on such a ground carries a very high burden of persuasion. (421 U.S. at pp. 47 [43 L.Ed.2d at pp. 723-724].)
We concluded in Kloepfer that the challenged procedures of the Commission involved even less potential for biased decisionmaking than those upheld by the high court in Withrow. We noted that the prosecutorial function rested largely with examiners from the Attorney General‘s office, that the Commission independently reviews the evidence and makes its own findings and conclusions, and that this court is the final decisionmaker and
Petitioner contends that the circumstances in the present case, in which petitioner challenged the Commission‘s open-hearing order in a collateral writ proceeding (see Adams I, supra, 8 Cal.4th 630), created a significantly greater risk of bias against him than the risk of bias present in Kloepfer. He argues that the Commission‘s role as his opponent in that collateral proceeding, in seeking to validate the open-hearing order, converted the Commission from a neutral forum to an adversarial party. He argues that the Commission‘s vigorous opposition to his attempt to vacate the open-hearing order, using as legal counsel the same attorneys who were prosecuting the charges, inevitably prejudiced the Commission against him with respect to the merits of the charges, creating a strong probability of bias against him.
The Commission ordered open the hearing for the purpose, and in the interest, of maintaining public confidence in the judiciary and its disciplinary procedures, pursuant to the provisions of article VI, section 18, former subdivision (f). Having determined that the charges against petitioner involved moral turpitude, dishonesty, or corruption, and that an open hearing would best serve public confidence and the interests of justice, the Commission was bound to seek implementation of the open-hearing procedures, as one of the duties required of it under the foregoing former provision of the California Constitution predating Proposition 190. The Commission‘s use of the Attorney General as legal counsel for this purpose was appropriate under
Not surprisingly, petitioner cites no authority in support of his contention that the Commission‘s defense of its open-hearing order rendered the Commission a biased tribunal. Petitioner‘s premise would lead to the absurd consequence that an administrative agency charged with adjudication of a claim in an administrative proceeding would be disqualified from performing its function whenever it was required to assert or defend its position against the claimant in a matter preliminary to a final determination of the merits of the claim. Such a result would be inconsistent with a large body of decisional law relating to administrative proceedings (see, e.g., Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047 [275 Cal.Rptr. 594]; Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12 [122 Cal.Rptr. 337]) and essentially would emasculate the ability of an agency to serve many of the functions for which it is responsible. As the high court explained in Withrow, in all adjudicatory proceedings the judge or other decisionmaker frequently renders preliminary or interlocutory orders (e.g., issuing arrest warrants based upon a finding of probable cause, or a preliminary injunction) that, except in unusual circumstances, do not give rise to a presumption of bias precluding that decisionmaker from making a finding of guilt or innocence in a criminal proceeding or a final adjudication of the merits of a dispute in a civil proceeding. (421 U.S. at p. 56 [43 L.Ed.2d at pp. 728-729].)
In a related argument, relying upon remarks made by a number of Commission members during oral argument before the Commission, petitioner appears to contend that the record establishes actual bias or prejudice on the part of particular Commission members.
During the course of his argument before the Commission, petitioner‘s counsel noted that the disciplinary proceeding raised questions regarding public perception of the judiciary and suggested that public confidence in the proceedings would best be served if the Commission accorded serious weight to the findings and conclusions of the special masters, who diligently had heard all the evidence.
Commissioner Andy Guy questioned petitioner‘s counsel regarding that suggestion, asking: “If you were so interested in the public, the public outrage, why did you try to keep this thing secret from the public all the way through? No open hearing?” Commissioner Essegian noted shortly thereafter, with regard to Commissioner Guy‘s comments, that “there has been a real effort here to keep everything confidential.” In closing argument, the examiner suggested that the reason petitioner had not sought to open the proceedings to the public was that he knew the public would be outraged by the truth.
Petitioner contends the foregoing comments of the Commission members, considered in conjunction with the examiner‘s argument, reflect the Commission‘s improper consideration of the earlier writ proceeding in formulating its disciplinary recommendation. He argues that the Commission‘s consideration of this collateral matter constituted an abuse of the Commission‘s discretion and “tainted” the proceedings.
The record fails to establish that the determination by the Commission of the appropriate disciplinary recommendation was based upon a desire improperly to penalize petitioner for having challenged the open-hearing order.
For these reasons, we conclude the record fails to support petitioner‘s claim that the Commission proceedings were tainted by actual bias or prejudice against him (or by an unacceptable risk thereof), in violation of due process requirements.
IV
Turning to the charges against petitioner and the merits of the Commission‘s findings and conclusions, we first set forth the uncontroverted factual scenario underlying a substantial portion of the allegations of misconduct.
From August through October of 1985, petitioner presided over the trial in a complex civil case, Security Pacific National Bank v. Williams (Super. Ct. San Diego County, 1985, Nos. 457727 and 457728), between the named bank and James Williams, an automobile dealer. The litigation involved an action by the bank against Williams to enforce personal guaranties for indebtedness that had been executed by Williams, and a related cross-action by Williams against the bank, seeking tort damages for alleged fraud and other misconduct in the course of his transactions with the bank. Williams was represented in the litigation by Attorney Patrick Frega.
The trial commenced as a jury trial but concluded as a court trial. Following the presentation of evidence, petitioner devoted approximately 100 hours to drafting his written decision. In early 1986, petitioner rendered the decision, awarding judgment in favor of Williams in the amount of approximately $5 million, expressly reserving jurisdiction to determine attorney fees and costs on appeal. Security Pacific appealed from the judgment.
The matter was pending on appeal from mid-1986 to August 31, 1989, when the judgment was affirmed by the Court of Appeal in an unpublished
From 1989 through 1991, petitioner engaged in five business transactions with Williams and his dealership, involving the purchase and repair of automobiles. Four of these five transactions also involved Attorney Frega.
We shall consider the charges that were upheld by the Commission as framed in the four counts set forth in the notice of formal proceedings,10 first reciting the specific allegations and then reviewing the evidence presented before the special masters, the findings and conclusions of the special masters, and the findings and conclusions of the Commission.
Count 1: Count 1 alleges that petitioner and members of his family received gifts and financial benefits from Williams, including discounts and favorable prices for the purchase of automobiles and for repairs. Count 1 sets forth seven separate incidents, including five automobile-related transactions, a celebration dinner, and the gift of a sweater.
(A) The purchase of the 1986 Mercedes.
Subcount (a) alleges that in early 1989, while the Security Pacific case remained pending on appeal, petitioner personally contacted Williams, requesting that the car dealer search for a used Mercedes automobile for petitioner‘s wife. Williams sold a 1986 Mercedes 300E to petitioner in March 1989, personally setting the sales price at $20,537, an amount that allegedly appeared to be favorable to petitioner.
The record reflects that in 1989, approximately three years following entry of judgment in the Security Pacific case, but while the case remained pending on appeal, petitioner contacted Williams, indicating that he was looking for a used automobile for his wife. At the time, petitioner had no
Expert testimony was presented regarding the fair market value of the Mercedes, establishing that used automobile prices are determined by a number of factors, including the “Kelly Bluebook” value, the type of dealership, the mileage and condition of the vehicle, and the profit margin for the dealership. The examiners presented evidence that the sales price of $20,537 was approximately $5,000 below market value. The testimony of the former Mercedes owner, however, among other evidence, indicated that as a result of the terms of the sale of a new vehicle to the former Mercedes owner, the actual cost of the Mercedes to Williams was $18,000. At this cost, after servicing the vehicle prior to sale, the dealership realized a total profit in the range of $2,000, an amount in excess of the average profit realized on a retail used-automobile sale for the dealership.
The special masters found that Williams did not confer any special benefit upon petitioner with respect to the purchase price charged for the Mercedes. In this regard, the special masters found that the amount of profit realized by Williams on the transaction was critical to the determination of whether he gave petitioner a “good deal,” and that even the examiners acknowledged that a profit in excess of $2,000 would be commercially reasonable. For these reasons, the masters concluded that the price set by Williams was not unduly favorable. The masters nevertheless concluded that petitioner‘s actions in engaging in a business relationship with Williams—after rendering an enormous judgment in favor of this litigant—undermined public confidence in the judiciary, because a person aware of the circumstances of the
The Commission found that petitioner initiated the Mercedes transaction with Williams with the expectation of receiving favorable treatment, and that petitioner purchased the Mercedes on terms more favorable than those normally made available to members of the general public. In this regard, the Commission found, contrary to the finding of the special masters, that the amount of profit realized by Williams on the transaction was not determinative of whether petitioner was charged a favorable price by the automobile dealer.
The Commission concluded it was improper for petitioner to engage in a business transaction with Williams after awarding him a multimillion dollar judgment in a court trial, and while the case remained pending on appeal with jurisdiction reserved by petitioner for the determination of attorney fees and costs on appeal. The Commission concluded petitioner‘s actions were contrary to canons 2A and 4D(5) of the Code of Judicial Conduct and characterized this misconduct as an abhorrent disregard for the integrity of the judicial office that was harmful to public confidence in the judiciary. The Commission unanimously concluded petitioner‘s actions constituted prejudicial conduct.
We conclude the record does not contain clear and convincing evidence that petitioner initiated the transaction with the expectation of receiving a financial favor. Petitioner‘s explanation for contacting Williams rather than some other used automobile dealer (he did not wish “to deal with used car salesmen who would try to hassle or negotiate a price“) is plausible and supported by the testimony of Williams that petitioner affirmatively stated he did not seek any “special deal.”
We also agree with the finding of the special masters that the record fails to provide clear and convincing evidence that petitioner paid a price for the purchase of the Mercedes that was unduly favorable to him and that would not have been offered to members of the public. The Commission‘s expert testimony that the purchase price was approximately $5,000 below market value was controverted in part by expert testimony presented by petitioner, establishing that when a used Mercedes is traded to a non-Mercedes dealership, the dealership generally will seek to wholesale the vehicle as quickly as possible, rather than sell it to the general public, in order to recover immediately the dealer‘s cash investment.
Regardless whether petitioner received a discount or other financial benefit, however, the foregoing circumstances establish that petitioner initiated a business transaction with, and actively solicited the assistance of,
(B) The celebration dinner and purchase of the Jeep.
Subcount (b) alleges that in approximately February 1990, petitioner attended a dinner hosted by Frega in celebration of the satisfaction (in January 1990) of the judgment in the Security Pacific litigation (a judgment totaling, with accrued interest, in excess of $7 million). The dinner was attended by approximately 25 guests, including Williams, Frega, and members of Frega‘s law firm. Frega paid for the dinner at a cost of approximately $1,500.
The evidence established that Frega hosted the celebratory dinner at a restaurant. Petitioner and his wife arrived late, stayed approximately 45 minutes, and then departed. While there, they each consumed some food but no alcoholic beverages.
Subcount (b) further alleges that, approximately two months after satisfaction of the judgment, and following his attendance at the celebratory dinner, petitioner contacted Williams, asking the automobile dealer to locate a used vehicle for his daughter. On or about March 22, 1990, Williams delivered a 1988 Jeep Cherokee to petitioner, setting the sales price at $13,500, totalling $14,796.74 with tax and license—an amount that allegedly appeared to be unduly favorable to petitioner. At that time, the sole consideration tendered by petitioner for the Jeep was the trade-in of a 1983
The record reflects that at the time he contacted Williams regarding the Jeep, petitioner told the dealer he could afford to pay approximately $5,000 to $5,500 plus the trade-in value of the 1983 Oldsmobile. Williams testified petitioner emphasized that he did not want “any favors” and that the dealer should “make money” on the transaction. Williams was aware, however, that petitioner was experiencing financial difficulties as a result of the dissolution of his marriage. Approximately two weeks later, Williams delivered a 1988 Jeep Cherokee to petitioner. At the time, petitioner was aware that the value of the vehicle likely exceeded the amount he had indicated to Williams he could afford. He did not raise this issue with Williams or otherwise inquire regarding the purchase price. A few days later, petitioner telephoned Williams to confirm that he would purchase the vehicle.
An invoice for the transaction dated March 22, 1990, was prepared by the dealership, listing the base price of the Jeep at $13,500, with a total sales price of $14,796.74. The invoice reflected a credit in the amount of $800 for the Oldsmobile. On May 7, 1990, the dealership sold the Oldsmobile for $800.
At the time he confirmed he would purchase the Jeep, petitioner was neither presented with a sales invoice nor asked to sign any contract; no arrangements were made with Williams for payment or for financing the purchase, and petitioner was not sent a bill. Apart from the trade-in of the Oldsmobile, petitioner made no payment on the purchase price until April 16, 1990, when he paid the dealership $5,000 that he had borrowed from his father. At that time, petitioner inquired of Williams regarding the balance owed on the purchase price. Williams insisted (incorrectly) that the balance had been satisfied by the trade-in of the Oldsmobile. Petitioner testified that he simply “could not get a number out of [Williams]” but was aware that additional sums were owed.
In late May, petitioner requested that Frega ascertain the balance due on the purchase of the Jeep. A few days later, when Frega reported back that
Williams testified that prior to the Jeep purchase transaction he had had a long-standing, ongoing “understanding” with Frega that, with respect to any customer referred by Frega to Williams, if Williams felt that “I [Williams] didn‘t make enough money or if I was going to get stuck on the hook or if it was maybe the difference between wholesale and retail, that he [Frega] would take care of the difference.” At the time of the Jeep transaction, Williams considered petitioner to be a customer referred by Frega and thus covered by this understanding.
The special masters found that in purchasing the Jeep from Williams, petitioner had not been seeking any financial advantage from the dealer, and concluded that petitioner had been unaware of the gift conferred upon him by Frega until after the commencement of the Commission investigation. The special masters concluded, however, that under the circumstances petitioner should have been alerted to the risk that his conduct might have endangered the public esteem in which the judiciary was held, and that his actions therefore amounted to prejudicial conduct.
The Commission found that the total amount paid by petitioner (the $800 value of the Oldsmobile trade-in plus the cash payments of $5,000 and $5,672.40) was below the fair market value of the Jeep. The Commission concluded that it was misconduct for petitioner to engage in the Jeep transaction with Williams in light of the circumstances that petitioner had entered a multimillion dollar judgment in favor of Williams that recently had been paid in full and recently had attended a celebration dinner occasioned by satisfaction of the judgment. Contrary to the finding of the special masters that petitioner had not been seeking any financial advantage, the Commission found that petitioner had initiated this transaction with Williams in the expectation of receiving favorable treatment, and that in fact he received benefits that a member of the general public would not have received, both in the manner in which the transaction was conducted and the price that was charged.
The Commission unanimously concluded that petitioner‘s actions both with regard to his purchase of the Jeep and his attendance at the celebratory
Clear and convincing evidence supports the charges of misconduct alleged in subcount (b) of count 1, and we adopt the conclusion of the Commission that petitioner engaged in prejudicial conduct. As with the transaction involving the purchase of the 1986 Mercedes, petitioner‘s conduct in initiating a transaction with the automobile dealer, in this instance shortly following the payment in full of the substantial judgment in the Security Pacific litigation, violated the proscription of former canons 2 and 5 against conduct giving rise to the appearance of impropriety. Petitioner‘s testimony that he thought he would be getting a “fair deal” from the dealer (rather than a “special deal“) is not inherently incredible, and we defer to the findings of the special masters that petitioner did not initiate the transaction with the expectation of receiving favorable treatment. To a member of the public, however, petitioner‘s actions, shortly following the euphoria surrounding satisfaction of a multimillion dollar monetary judgment rendered by petitioner in a court trial, readily could be construed as an attempt by petitioner to exploit his judicial office for personal advantage. Although petitioner insisted that he wished to pay fair market value for the Jeep, his insistence could well be viewed as disingenuous under the circumstances, particularly where Williams had delivered the vehicle to him without presenting a sales contract or otherwise setting the purchase price, and did not require immediate payment. Furthermore, the record provides clear and convincing evidence that petitioner received favorable terms in the manner in which the transaction was handled—terms that would not have been afforded to members of the public. He was not required to sign a sales contract, and he made payment on the purchase price on a schedule of his own choice rather than in accordance with the method of payment generally required by the dealership for similar purchase transactions.
Regardless whether petitioner had actual knowledge that he had not paid fair market value for the Jeep, or that Frega had paid the balance owed on the purchase price, petitioner‘s reliance upon Frega to finalize the transaction strongly suggested impropriety. Frega represented Williams, the litigant in favor of whom petitioner had awarded the multimillion dollar judgment following a court trial, and, pursuant to a contingency fee arrangement, Frega had a 40 percent interest in the amount of the final judgment following affirmance on appeal. Additionally, matters involving the Frega firm frequently came before petitioner. The record establishes that, in placing himself in Frega‘s hands, petitioner deliberately ignored the strong possibility that Frega ultimately would arrange for petitioner to pay less than fair
We also adopt the conclusion of the Commission that petitioner‘s attendance at the dinner given in celebration of the satisfaction of the judgment in the Security Pacific litigation constituted prejudicial conduct. Again, regardless of petitioner‘s motives, or of whether he was biased or impartial in the judicial proceedings involving the Security Pacific litigation, his attendance at the dinner indisputably gave rise to the appearance of partiality in favor of a litigant and his attorney whose very substantial interests had come before him. Under these circumstances, the dinner could not be characterized as ordinary social hospitality within the meaning of former canon 5C(4)(b).
(C) The Jeep repair.
Subcount (c) alleges that in or about November and December 1991, Williams‘s dealership performed repairs on petitioner‘s daughter‘s Jeep. The dealership discounted by 10 percent the cost of parts and labor, resulting in a balance due of $8,500. On December 9, 1991, petitioner paid Williams $7,000. On that same day, “Patrick Frega, counselor at law, a professional corporation,” issued a check to Williams‘s dealership in the amount of $1,500 toward payment of the bill.
The evidence established that the Jeep had been severely damaged in an accident. Petitioner contacted Williams regarding the cost to repair the vehicle and was informed it would range from $8,000 to $8,500. Petitioner expressed his displeasure with the estimate, indicating it would make more sense economically to scrap the vehicle for salvage value. Williams replied he would investigate the availability of used parts, which would lower the cost of repairs. Williams ultimately directed the preparation of a repair order estimate that would not exceed $8,500.
Frega subsequently informed petitioner that Williams had advised him the repairs could be performed at a cost of $7,000. Because of his earlier conversation with Williams, petitioner assumed Williams had found used
The special masters found that Williams had billed the cost of repairs at $8,500 but had not sent the bill to petitioner, and that petitioner reasonably believed the cost of repairs was $7,000. The masters further found that the $8,500 bill resulted in a substantial gross profit for Williams, and that even at a charge of $7,000, Williams still would have realized a gross profit of more than $1,700, so that Williams had not conferred any special benefit upon petitioner. The masters further found that prior to the investigation petitioner had not had any knowledge of the $1,500 payment made by Frega. The masters finally concluded, however, that petitioner‘s actions constituted prejudicial conduct because of the risk of the appearance of impropriety.
The Commission concluded that the Jeep repair transaction was “not handled in the manner that repair transactions involving members of the general public were handled,” noting the circumstances that petitioner had not been required to make payment immediately upon delivery of the vehicle, and that Frega had been involved in the transaction. The Commission found that petitioner initiated this transaction with the expectation of receiving favorable treatment, and concluded that it was improper for petitioner to engage in a business transaction with Williams, particularly in view of the circumstance that petitioner was aware that Williams previously had attempted to confer a special favor upon him in connection with the purchase of the Jeep.
The Commission concluded that petitioner‘s actions with regard to the Jeep repair were contrary to canons 2A and 4D(5), demonstrated a lack of integrity, and constituted prejudicial conduct.
We conclude the record fails to provide clear and convincing evidence that petitioner initiated this transaction with Williams with the expectation of
We also defer to the finding of the special masters that the $7,000 price paid by petitioner was commercially reasonable, in light of the evidence indicating that it resulted in a substantial markup for Williams above cost. A colloquy between petitioner‘s counsel and Williams at the hearing before the masters is illuminating in this regard: “[Counsel]: How far would you go down on a deal in an ordinary business setting, you know, somebody you didn‘t know that brings a car in for repair that they‘ve purchased from you, what percentage of mark-up over your cost would you go down to before you‘d let them take the deal—the repair somewhere else? [] [Williams]: If I got involved, I would let them come down to somewhere in the neighborhood of around 40 percent. [Counsel]: Okay, so you could make 15, $1,800 on a repair like this, rather than lose the deal, you‘d take that? [Williams]: Sure.” (Italics added.) We also defer to the finding of the special masters that petitioner was truthful in his testimony that he was unaware of Frega‘s $1,500 contribution toward the repair bill.
As with the Jeep purchase transaction, however, petitioner‘s reliance upon Frega for the financial arrangements, in view of his relationship with this attorney and the frequency with which Frega‘s interests came before petitioner, clearly was improper. Regardless whether petitioner had knowledge of Frega‘s payment, his failure to obtain a bill for the repairs directly from Williams, and his reliance upon Frega to verify the cost, reflect that petitioner turned a blind eye toward the possibility of receiving special treatment, whether from Williams or Frega, or from both men. To an objective observer, petitioner would appear to have been seeking to use his judicial office to advance his personal interests, placing in doubt both his independence and his integrity. We therefore conclude the record supports the charge of prejudicial conduct with regard to this incident.
(D) Rental car.
Subcount (d) alleges that in 1991, Williams‘s dealership and Frega arranged for a rental car for petitioner‘s daughter while her Jeep Cherokee was being repaired. In January 1992, Frega paid the $1,063.53 bill for the car rental.
The special masters concluded that petitioner‘s conduct relating to the automobile rental constituted prejudicial conduct.
The Commission found that petitioner had engaged in misconduct in contacting Frega regarding the rental, and specifically in asking the attorney to intervene under circumstances where a “loaner” previously had been refused to petitioner‘s daughter. The Commission further found that petitioner had received a special benefit in the manner in which the rental transaction was handled. The Commission concluded that petitioner‘s actions with regard to the automobile rental were contrary to canons 2A and 4D(5), demonstrated a lack of integrity, and constituted prejudicial conduct.
Clear and convincing evidence supports the Commission‘s findings, which in turn support the conclusion that petitioner engaged in prejudicial conduct. Regardless whether petitioner had knowledge of the financial arrangements involved in the automobile rental, including Frega‘s payment of the bill, petitioner‘s actions in contacting Frega and permitting him to intervene in a transaction involving Williams strongly suggest that petitioner was seeking to use his judicial office to advance his personal interests and those of a family member. Petitioner‘s conduct also permitted the inference that Frega was in a special position to influence petitioner, another violation of the Canons of Judicial Ethics.
(E) The detailing and rims for the 1981 Mercedes.
Subcount (e) alleges that in 1991, Williams gave petitioner “a set of wheels” for petitioner‘s 1981 Mercedes. In May 1991, when Williams‘s
The evidence established that in May 1991, shortly before petitioner and his wife left for a one-month vacation abroad, petitioner arranged to leave the 1981 Mercedes at Williams‘s dealership to have detailing work performed in his absence. He arranged for Frega to meet him at the dealership so that Frega could drive him home. When petitioner and Frega met with the “fleet manager,” petitioner advised the manager to contact Frega if any questions arose in his absence regarding the work to be performed. The job was completed at a cost of $511. Without authorization, Williams also had an old set of Mercedes rims placed on the vehicle. The fleet manager instructed the body work department to bill Frega, and a bill for $511 for buffing and polishing was sent to him. Frega paid the bill in July 1991. After the vehicle was delivered to petitioner‘s residence, petitioner upon his return from vacation noticed the replacement rims. He then telephoned Williams, told him the work was acceptable, and asked him to send a bill. Petitioner, however, never was billed and never paid for any of this work.
The special masters concluded that petitioner‘s conduct amounted to prejudicial conduct. As with the prior transactions with Williams, the Commission also determined that petitioner had engaged in misconduct, particularly in making no effort to ensure that he received a bill or paid for this work. The Commission concluded that petitioner‘s actions with regard to this transaction were contrary to canons 2A and 4D(5), demonstrated a lack of integrity, and constituted prejudicial conduct. Clear and convincing evidence, set forth above, supports the findings and conclusions of the Commission, which we adopt as our own.
(F) The gift of a sweater from Williams.
Subcount (f) alleges that in December of 1990 (the year Williams received satisfaction of his multimillion dollar judgment), Williams gave petitioner a gift of a sweater, which petitioner accepted. Petitioner reported the gift of the sweater, valuing it at $150, on his financial disclosure statement.
The special masters concluded that the incident was of de minimis importance and that petitioner‘s mere failure to return the gift did not amount to prejudicial conduct.
The Commission reached a different conclusion, observing that because the gift was from a litigant in favor of whom petitioner had awarded a
We agree with the conclusion of the Commission. Although petitioner did not solicit the gift, under the circumstances it was incumbent upon him to return it to Williams in order to avoid any doubt regarding the judge‘s independence or any appearance of impropriety.
In conclusion, we find that clear and convincing evidence supports the numerous charges of prejudicial conduct set forth in count 1 that were sustained by the Commission.
Count 2:
Count 2 alleges that petitioner received gifts from attorneys, including Frega, whose interests had or were likely to come before the judge. In proceedings (including settlement conferences) involving these attorneys, petitioner failed to disqualify himself or make full disclosure on the record of his relationship with these attorneys or their firms, or to obtain a written waiver of disqualification. In particular in cases where petitioner‘s sole involvement was to preside over settlement conferences, he failed to make adequate disclosure of his relationship with these attorneys or the gifts he had received from them.
We shall address each of the instances of charged misconduct that were sustained by the Commission.
(A) Gifts and favors from Frega.
In 1987, Frega was honored by the San Diego Trial Lawyers Association as “trial lawyer of the year,” as a result of his success in the Security Pacific litigation. Frega asked petitioner to present the award to him at an awards dinner. Petitioner was unable to attend the dinner but agreed to take a “rain check.” Frega and his wife took petitioner and his wife to the “rain check” dinner (the term alleged in count 2) on July 2, 1987. On his financial statement filed for that year, petitioner reported the value of the dinner at $100.
Count 2 further alleges that petitioner reported accepting a loan of Frega‘s computer from December 1, 1987, to June 30, 1988, and from November 1, 1989, to December 31, 1990, valuing the loans at $1,300.
Count 2 additionally alleges the monetary gifts and payments made by Frega in connection with the automobile-related transactions that comprise the charges set forth in count 1.
To facilitate the writing of the book, petitioner accepted the loan of Frega‘s laptop computer, reporting the value of the loan in the financial disclosure statements filed by petitioner for consecutive years.
During the period of the loan of the computer to petitioner, a personal friendship developed between the two men, and six cases in which one or more of the parties were represented by Frega‘s law firm were pending before petitioner. All six of these actions were settled on terms under which the parties represented by Frega‘s law firm received substantial, and in some cases multimillion dollar, sums in settlement proceeds.
In 1988, after their personal friendship had developed, petitioner informed Frega that he no longer would preside over any matter in which Frega appeared. Frega paraphrased petitioner as informing him that ” ‘I‘ve gotten to the point where I don‘t believe I can hear your cases. So what I‘ll do is since I‘ve got settlement conferences or cases for your partner, Tiffany, I will hear cases until there‘s a contested motion or ruling I have to make as to questions of fact, and I will recuse myself.’ ”
The special masters found that the “rain check” dinner was part of an exchange of social amenities among personal friends and did not amount to misconduct. They found the computer loan amounted to at most “improper action.”
The Commission concluded that petitioner‘s acceptance of the “rain check” dinner, after awarding Frega‘s client a multimillion dollar judgment that was pending on appeal following a court trial, and while cases handled by Frega‘s law firm either had come or were likely to come before petitioner, amounted to prejudicial conduct.
The Commission concluded that the computer loan could not properly be characterized as an exchange of social amenities, and that in light of the
We conclude that petitioner‘s conduct in accepting the “rain check” dinner and the computer loan constituted improper action. In both instances, petitioner violated the general proscription against a judge‘s acceptance of gifts under
The Commission made no separate findings or conclusions with regard to the alleged receipt of gifts from Frega in connection with the Jeep purchase, Jeep repairs, car rental, and detailing of the 1981 Mercedes. As indicated previously, we conclude the record lacks clear and convincing evidence that petitioner was aware of Frega‘s contributions in connection with these transactions, although, as indicated above, petitioner‘s reliance upon Frega‘s involvement in the transactions constituted prejudicial conduct.
(B) Gifts and favors from the law firm of Ault, Midlam & Deuprey.
Count 2 further alleges that in 1985, petitioner was represented in a legal proceeding by the law firm of Ault, Midlam & Deuprey. Petitioner was a personal friend of Tom Ault, a senior partner of the firm. In December 1986, petitioner accepted a legal fee write-off of $600 from the firm, which he reported on his financial disclosure statement. After 1986, members of the law firm appeared before petitioner in numerous cases.
The record reflects that on December 31, 1985, the Ault firm billed petitioner for legal services in the amount of $1,000. Between January 15, 1986, and September 8, 1986, petitioner made monthly payments of $50 toward this account. In December 1986, the Ault law firm wrote off the remaining balance of $600 and informed petitioner of this fact. Petitioner
Both the special masters and the Commission concluded that the fee write-off could not be characterized as an exchange of social amenities among friends and that it constituted improper action.
We conclude that petitioner‘s receipt of a fee write-off in a fairly substantial amount from a law firm that regularly appeared before him constituted prejudicial conduct, violating both the general proscription against a judge‘s acceptance of gifts from attorneys who are likely, or whose firms are likely, to appear before the judge, and the proscription against conduct permitting the inference of special influence over a judge. To an objective observer, petitioner‘s conduct would have compromised the independence and integrity of the judiciary.
(C) Gifts and favors from the law firm of Duckor & Spradling.
Count 2 alleges that in October 1989, petitioner accepted the use of a desert resort condominium owned by Michael Duckor, a senior partner of the law firm of Duckor & Spradling, for a three-night stay. Since 1989, members of the Duckor firm have appeared before petitioner in a number of cases, and petitioner regularly has appointed Michael Duckor as a special master.
The evidence established that in approximately June 1989, petitioner began to appoint Duckor as a special master in cases involving construction defects, the attorney having acquired a reputation for exceptional skill in the resolution of these cases. Within a year, Duckor‘s special master activities comprised 50 percent of his practice. In 1989, approximately two-thirds of his special master activities, and in 1990 approximately 20 percent, resulted from appointment by petitioner.
Duckor testified that in the fall of 1989, he informed petitioner that he had placed his desert resort condominium on the market for sale. The condominium was made available to all prospective buyers free of charge. Petitioner testified that he spent the weekend at the condominium because he and his then fiancée were considering buying such a unit as a “weekend getaway.” Ultimately petitioner decided not to purchase the condominium, and he and his fiancée subsequently purchased a resort condominium in Mexico. Duckor later sold his condominium to an unrelated party.
The condominium had a rental value of approximately $100 to $250 per day. Petitioner reported this condominium stay on his financial disclosure statement, listing its value as $220.
The special masters concluded that petitioner‘s acceptance of the condominium stay and the fishing trips were exchanges of social hospitality and did not constitute misconduct. The Commission concluded, however, in light of the circumstance of Duckor‘s appointment as special master by petitioner in construction-defect cases, that petitioner‘s acceptance of the condominium stay and fishing trips constituted “improper action.”
We adopt as our own the conclusion of the Commission that petitioner‘s use of Duckor‘s condominium constituted improper action. The California Judges Association Judicial Ethics Committee has declared the acceptance of such a gratuity to be improper: “A judge should decline the use of a boat or vacation home offered by an attorney who appears regularly in the judge‘s court, because such use would constitute a gift, but the judge may rent the boat or home from the attorney for the reasonable value of its use.” (Cal. Judges Assn., Jud. Ethics Com., Judicial Ethics Update (Oct. 1989) p. 2, published in Rothman, Cal. Judicial Conduct Handbook.) This instance of misconduct did not rise to the level of prejudicial conduct, given the circumstance that the condominium was offered free of charge to any member of the public interested in purchasing the resort condominium.
We further conclude that petitioner‘s participation in the fishing trips constituted prejudicial conduct. Accepting these outings, cosponsored by a law firm whose interests regularly came before petitioner, violated
(D) Failure to disclose or disqualify.
Count 2 further alleges that in proceedings before petitioner, in which the Frega, Ault, and Duckor firms appeared, petitioner improperly failed to disqualify himself, make adequate disclosure on the record of his
Before turning to the findings and conclusions of the special masters and the Commission regarding this allegation, we shall review the rules governing a judge‘s obligations of disclosure and disqualification.
The special masters found that between 1985 and 1991, petitioner was assigned the majority of construction-defect cases filed in the San Diego County Superior Court, having established an efficient standard operating procedure for their processing which frequently resulted in their early resolution (usually by means of settlement). These cases generally were handled by a limited number of local attorneys—approximately 150. Petitioner developed an expertise in managing these construction-defect cases and was in great demand as a settlement conference judge. The cases often were complex, involving multiple parties, and it was not uncommon for as many as 50 attorneys to attend a hearing or conference in a single case. As a result, attorneys generally noted their attendance on a sign-in sheet instead of announcing their names orally on the record, and accordingly petitioner frequently was unaware of a particular attorney‘s affiliation with a specific law firm. The masters expressly found that petitioner acted reasonably in not ascertaining the name and firm association of each attorney in attendance at these mass conferences. The masters also found that the evidence (including the testimony of many of the attorneys who had attended the proceedings before petitioner involving one of the three law firms) reflected there was no indication of any bias or prejudice on the part of petitioner in favor of or against any attorney.
The special masters further found that petitioner‘s personal relationships with Frega and Ault generally were known among the attorneys who appeared before petitioner, and that he frequently made affirmative reference to these relationships. On occasion, attorneys appearing before petitioner orally waived potential grounds for disqualification. The masters concluded that the disclosures made by petitioner were reasonable under the circumstances, and that petitioner reasonably concluded that persons aware of the facts would not entertain a doubt as to whether he would be impartial in matters that he heard involving the law firms of these attorneys.
The Commission‘s determination differed substantially from the special masters’ assessment of the circumstances of petitioner‘s limited disclosure and failure to disqualify himself. The Commission concluded that petitioner‘s relationship with the three attorneys (Frega, Ault, and Duckor) and their law firms, including petitioner‘s receipt of gifts from them, was such that a person aware of these circumstances reasonably might entertain a doubt as to
We agree with the conclusion of the Commission that, in light of the circumstances of petitioner‘s personal relationship with Frega commencing in late 1987 with their collaboration on the novel, petitioner‘s acceptance of the “rain check” dinner, and the loan of the laptop computer, petitioner thereafter was disqualified with respect to any matter involving Frega or his law firm. We similarly conclude that in light of petitioner‘s long-standing relationship with Ault, and petitioner‘s acceptance of a legal-fee write-off from his firm in December 1986, petitioner was disqualified with respect to any matter involving Ault or his firm as of the date of the write-off. We also conclude that following petitioner‘s acceptance of the 1989 condominium invitation from Duckor, whom petitioner regularly appointed as a special master, petitioner was disqualified from any matter involving the Duckor firm. We previously have concluded that petitioner‘s acceptance of these gifts and favors constituted improper action, if not prejudicial conduct. Under the circumstances, a person aware of these gifts and favors reasonably might entertain a doubt as to petitioner‘s independence and ability to remain completely impartial with respect to matters involving the three attorneys or their respective firms. (
As we have explained, the fact of petitioner‘s disqualification in a particular matter did not preclude his presiding over settlement conferences (
The Commission urges that, when the ground for disqualification is a judge‘s receipt of gifts from one of the parties or their attorney, a judge‘s failure to disclose the ground for disqualification, even when conducting a limited function permitted under
In the absence of any specific statutory requirement or canon governing a judge‘s obligation of disclosure under these circumstances, however, we conclude that such a prophylactic requirement of disclosure more appropriately should be promulgated by the adoption of a statutory enactment or a specific canon of ethics. Although the commentary to the 1992 version of canon 3E recommends that a judge disclose information that the parties or their attorneys might consider relevant to the issue of disqualification (even if the judge believes there are no actual grounds for disqualification or other circumstances precluding the judge from proceeding in the particular matter) (see fn. 12, ante), that particular permutation of the duty of disclosure was not in effect at the time of petitioner‘s alleged omissions in the present case, and we decline to hold petitioner to a standard beyond the general proscription against conduct creating the appearance of impropriety under canon 2.
We conclude, with respect to matters as to which petitioner‘s role was solely to preside over settlement conferences or settlement-related matters, that petitioner‘s failure to disclose on the record his relationship with the three firms did not constitute improper action under the
With respect to cases in which petitioner acted in a capacity other than as settlement judge, the circumstance of his disqualification necessitated that he
disclose on the record the grounds for his disqualification and obtain a written waiver of disqualification in accordance withCount 3: Count 3 alleged that petitioner provided legal advice to Frega and members of Frega‘s law firm on cases being handled by that firm, in a manner that failed to promote public confidence in the integrity and impartiality of the judiciary, in the following alleged instances:
(i) In late 1988 or January 1989, petitioner assisted George Manning, an associate of Frega‘s firm, in the preparation of a settlement conference brief in an action that was pending in the San Diego County Superior Court.
(ii) In 1989, petitioner again assisted Manning in the preparation of a settlement conference brief in an action that was pending in the San Diego Superior Court.
(iii) In 1989, petitioner met with Frega to discuss a case that was pending in the San Diego County Superior Court in which Frega‘s firm represented the plaintiff. Petitioner provided advice with regard to a contemplated “Tarasoff motion” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166], involving the special relationship between doctor and patient giving rise to a duty to warn foreseeable victims) prepared by the Frega firm, which subsequently was filed.
(iv) Between February 1988 and April 1988 (while the Security Pacific National Bank v. Williams litigation was pending on appeal), petitioner communicated with Frega regarding a case entitled Security Pacific National Bank v. Gustafson that was pending in the Los Angeles County Superior Court, involving the same plaintiff and cross-defendant and similar issues relating to lender liability as in the Security Pacific National Bank v. Williams case, which then was pending on appeal. At Frega‘s request, petitioner reviewed and provided his opinion regarding a special verdict rendered in that case.
The record reflects, with respect to subcounts (i) and (ii), that petitioner and Manning were close friends. Petitioner had assisted Manning in obtaining employment with the Frega firm, and petitioner was concerned about
With respect to subcount (iii), the record reflects the Frega firm represented the plaintiff in a medical malpractice case that had been assigned to Manning and another associate in the firm, Paula Tupper. In 1989, petitioner discussed the case with Manning, suggesting the filing of a ”Tarasoff in limine motion.” Manning related his discussion with petitioner to Tupper, who already had considered filing such a motion, independently of petitioner‘s suggestion. Petitioner reviewed the written motion drafted by Tupper, commenting that she had “done a good job.”
With respect to subcount (iv), the record reflects petitioner communicated with Frega regarding the Gustafson case and asked Frega to send him a copy of the special verdict rendered in that case. Petitioner later volunteered to Frega his view that it appeared Frega had lost the case.
The special masters concluded the evidence failed to sustain the charges of misconduct alleged in count 3. The masters found that in assisting Manning, petitioner simply was acting out of a compassionate concern for a friend, attempting to bolster Manning‘s confidence in himself as a lawyer and his ability to try cases effectively. With respect to petitioner‘s communications with Frega, the masters concluded that, in the absence of clear and convincing evidence that petitioner had discussed any of the legal issues presented in the cases, neither wilful misconduct nor prejudicial conduct was shown.
The Commission reached a significantly different assessment of petitioner‘s conduct, concluding that petitioner engaged in misconduct as charged in count 3, having improperly assisted and communicated with Frega and members of his firm in pending cases, contrary to canon 2A. The Commission found that petitioner‘s active participation in the preparation of settlement conference briefs in cases that were to come before another member of the court upon which petitioner served, demonstrated a disregard for the integrity of the bench and constituted prejudicial conduct. The Commission further concluded that petitioner‘s review and approval of a Tarasoff motion in another case that was to come before one of petitioner‘s judicial colleagues amounted to egregious misconduct, demonstrating a disregard for the integrity of the bench, and constituted prejudicial conduct. The Commission finally concluded that petitioner‘s conduct in soliciting a
We conclude that clear and convincing evidence establishes four instances of prejudicial conduct, as charged in count 3. Motive aside, in assisting Manning in the preparation of settlement conference briefs, and discussing with Frega or members of his firm the Tarasoff motion, petitioner violated the canons of judicial ethics that proscribe conduct giving rise to the appearance of a party‘s special influence over a judge, or the judge‘s bias against or prejudice in favor of an attorney. From the perspective of an objective observer, and particularly from the viewpoint of opposing counsel in these cases, petitioner‘s conduct could be construed as relating information known or peculiarly available to members of the San Diego County Superior Court bench that was not known or made available to other attorneys. Petitioner‘s act of soliciting the special verdict in the Security Pacific National Bank v. Gustafson case, and providing his view as to its significance, cast doubt upon his independence and impartiality with respect to the Security Pacific National Bank v. Williams litigation, which remained pending on appeal, particularly from the perspective of opposing counsel in that case.
Count 4: Count 4 alleges that, in response to inquiries by the Commission regarding complaints of misconduct, petitioner made material omissions and misrepresentations and demonstrated a lack of candor, as follows:
(i) In the course of its investigation, the Commission inquired of petitioner by letter dated October 18, 1991, regarding the gift (which the judge had declared) of the $150 sweater received from Williams (discussed, ante), asking him to comment and supply information “regarding any appearances before [petitioner] by any of the donors [of gifts], or any attorney or entity associated with a donor, since January 1, 1985.” Petitioner was directed to “[p]lease describe any appearance by a donor or associate, and indicate whether you have taken any legal action affecting a donor or associate, or whether you have recused yourself from a case involving a donor or associate.” Petitioner responded by letter that the sweater “was a Christmas gift from Williams who is a personal friend and has no business before me.” Petitioner failed to disclose that Williams had been a litigant who had appeared before petitioner in 1985 and 1986, and in favor of whom petitioner had awarded a judgment of approximately $5 million following a court trial.
(ii) The Commission inquired by letter dated October 18, 1991, regarding petitioner‘s declaration of a gift of legal services by the law firm of Ault, Midlam & Deuprey, requesting information regarding any appearances by that law firm in cases before petitioner. Petitioner responded by letter dated November 1, 1991: “Because of our friendship, Tom Ault has never appeared in front of me,” failing to disclose that members of the law firm had appeared before petitioner on several occasions since January 1, 1985.
(iii) The Commission inquired by letter dated October 18, 1991, regarding declared gifts from Frega, requesting information as to any appearances by Frega or other members of Frega‘s law firm in cases before petitioner. Petitioner responded that “Pat Frega does not appear in front of me and I will not hear one of his cases.” He also stated, “I will not hear a Frega case.” In a follow-up letter, the Commission inquired whether Frega had appeared before petitioner prior to giving him the gifts. Petitioner falsely responded that “Mr. Frega last appeared before me in 1984.” Petitioner failed to identify numerous cases involving Frega or his firm that had come before petitioner since 1984, including the Security Pacific National Bank v. Williams litigation.
(iv) The Commission inquired by letter dated October 18, 1991, regarding petitioner‘s declared stay at Duckor‘s desert condominium. Petitioner responded: “I recuse myself from all Duckor matters although the court uses him as a special master in cases involving construction defects.” He failed to disclose that the Duckor & Spradley firm had appeared before him in three cases.
Both the special masters and the Commission determined that petitioner was acting in a judicial capacity in responding to the inquiries of the Commission. The special masters concluded that in his responses petitioner, although demonstrating a lack of candor, had not acted in bad faith, and that in each instance petitioner had committed “negligent” prejudicial conduct, but not wilful misconduct.
The Commission, however, reached a different assessment of petitioner‘s dereliction, concluding that on each occasion petitioner demonstrated bad faith because in his responses he made material omissions that he knew or should have known were “beyond his authority,” and for a purpose other than the faithful discharge of his judicial duties. The Commission concluded that in each instance petitioner engaged in wilful misconduct.
With respect to petitioner‘s response set forth in subcount (i), the Commission specifically found that petitioner‘s explanation that he believed the
With respect to petitioner‘s response set forth in subcount (ii), the Commission concluded that, at the time he submitted his written reply, petitioner must have known that the import of the Commission‘s inquiry called for him to disclose that the Ault firm had appeared before him in several cases. By his reply, petitioner demonstrated a lack of candor.
With respect to petitioner‘s response set forth in subcount (iii), the Commission concluded that it was unreasonable for petitioner to assume he was obligated to disclose only those instances in which Frega personally appeared before him, and not instances in which a member of Frega‘s firm regularly appeared before him. At the time petitioner submitted his written reply, he knew that the import of the Commission‘s inquiry required that he disclose all responsive material information and at the least that the Frega firm had appeared before him in several matters, including the Security Pacific National Bank v. Williams case.
Similarly, with respect to petitioner‘s response set forth in subcount (iv), the Commission found that at the time he submitted his written reply, petitioner must have been aware that the import of the Commission‘s inquiry called for him to disclose that the Duckor & Spradley firm had appeared before him in several cases.
We agree with the conclusion of the Commission that in each instance, in responding to the Commission‘s inquiries, petitioner was acting in a judicial capacity. The Commission‘s inquiry was directed to petitioner because he is a judge, and his reply was required as one of his judicial functions. We also agree that in each instance petitioner‘s conduct demonstrated bad faith, as defined, ante. Petitioner either knew or should have known that his responses were either inaccurate or incomplete. Although it may not be expected that petitioner would be able to identify the name of every case involving the three law firms that had come before him since 1985, petitioner reasonably should have been expected to disclose that the firms had appeared before him since January 1, 1985, and to identify at least some of their cases in some fashion. Petitioner‘s act of providing false and
V
Petitioner presented substantial evidence in mitigation of the charges, relating to his competence, diligence, and dedication in the performance of his judicial functions over the course of his judicial career. When appointed to the municipal court, petitioner devoted significant time and effort to the “El Cajon Experiment,” a project authorizing municipal court judges to perform certain functions of a superior court in the El Cajon Municipal Court facility. When appointed to the superior court in 1979, for several years petitioner was assigned to the juvenile department, where he participated in establishing programs providing juveniles with an alternative to placement in the California Youth Authority, and activities diverting them from involvement in delinquency. In 1987, petitioner began to devote his efforts to the management of construction-defect cases, which comprised a significant portion of the matters pending in the San Diego County Superior Court. This type of litigation often was complex, involving numerous parties and attorneys, extensive discovery, and other pretrial procedures. Petitioner developed a standard operating procedure for the management of these cases, and by 1988 was considered by counsel to be the “judge of choice” for assignment of such matters.
Several judges and numerous attorneys testified to their perception of petitioner‘s outstanding legal and administrative skills, noting his significant contributions toward streamlining the court system and implementing a “fast-track” system.
Finally, petitioner testified before the special masters that, although at the time of the various instances of misconduct it was his perception that he had not sought out, and had not received, any special favors or benefits by reason of his judicial office, he ultimately has recognized that his conduct might have created an appearance of impropriety, damaging the prestige of his judicial office, further recognizing that therefore he had acted improperly. Petitioner‘s testimony further emphasized that, in hindsight, his personal relationship with Frega and his social relationship with Williams were inappropriate and inconsistent with the standards of conduct called for by his judicial office, and that he “had learned his lesson.”
The foregoing evidence of petitioner‘s qualifications for and contribution to the judicial system, during the course of a lengthy judicial
VI
The special masters found that, although petitioner had failed to appreciate the possible perception by the public of his business and social dealings, there was no evidence that petitioner‘s rulings or other actions executed in the exercise of his judicial duties were based upon any criteria other than the merits of the matters before him. In the course of the testimony of 57 witnesses,14 in addition to the other evidence presented, there was no suggestion that petitioner had demonstrated any improper bias or prejudice in favor of or against any attorney or litigant. Without rendering a specific disciplinary recommendation, the masters noted their view of petitioner “as an unusually competent and innovative judge who used poor judgment in certain instances, rather than as a scoundrel who has disgraced the Bench.”
In rendering its disciplinary recommendation of removal, the Commission noted specifically that it had taken into account petitioner‘s generally successful tenure as a judge, but emphasized that the charged misconduct began in 1987 and continued for a significant portion of petitioner‘s judicial career.
VII
In making our independent determination of the appropriate disciplinary sanction, we consider the purpose of a Commission disciplinary proceeding—which is not punishment, but rather the protection of the public, the enforcement of rigorous standards of judicial conduct, and the maintenance of public confidence in the integrity and independence of the judicial system. (Adams I, supra, 8 Cal.4th at p. 637; Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d at pp. 864-865.)
In past judicial disciplinary proceedings that have resulted in a judge‘s removal from office, the misconduct that we have determined justified this most severe of disciplinary sanctions generally has involved a pattern of arbitrary, irrational, and inappropriate conduct of the judge while acting on
To summarize our conclusions regarding the misconduct committed by petitioner:
With respect to count 1, we conclude clear and convincing evidence supports the charges that petitioner engaged in seven separate instances of prejudicial conduct in his transactions with Williams (four of which involved Frega), in petitioner‘s attendance at the celebratory dinner, and in his acceptance of the sweater. As we have indicated, however, the record does not support the allegations that petitioner received any special financial benefit in the Mercedes purchase transaction, or that he initiated any of these transactions with the expectation of receiving favorable treatment. We also conclude the record fails to establish by clear and convincing evidence that petitioner solicited or had any knowledge of Frega‘s financial contributions
With respect to count 2, clear and convincing evidence supports two of the charges that petitioner engaged in prejudicial conduct in accepting gifts or financial benefits from attorneys or their law firms whose interests had come and were likely to come before petitioner, and also establishes that petitioner engaged in three separate instances of improper action. Once he was disqualified in any matter involving these attorneys or law firms, to the extent petitioner acted in a capacity other than settlement conference judge his failure to disclose on the record the grounds for disqualification and obtain a written waiver constituted improper action.
With respect to count 3, clear and convincing evidence supports the charges that petitioner engaged in four separate instances of prejudicial conduct in assisting or otherwise communicating with members of Frega‘s firm regarding matters pending before the San Diego County Superior Court, as well as a matter before another court involving parties, attorneys, and issues related to those involved in the Security Pacific National Bank v. Williams litigation.
Finally, with respect to count 4, clear and convincing evidence supports the charges that petitioner engaged in four separate instances of wilful misconduct in making material misstatements or omissions to the Commission. These sustained charges, in particular, warrant petitioner‘s removal from office. There are few judicial actions in our view that provide greater justification for removal from office than the action of a judge in deliberately providing false information to the Commission in the course of its investigation into charges of wilful misconduct on the part of the judge.
The record accordingly establishes that petitioner engaged in successive extrajudicial transactions that extended over a significant period of time, creating an appearance of serious impropriety and thereby tending to diminish the public esteem of the judiciary—a consequence petitioner either deliberately ignored or was unable to appreciate. Under these circumstances, we uphold the disciplinary recommendation of the Commission that petitioner be removed from office.
VIII
We order that Judge G. Dennis Adams, judge of the San Diego County Superior Court, be removed from office. He shall, however, if otherwise
MOSK, J.—I dissent.
G. Dennis Adams has been a good judge for his 20 years on the bench. Of that there is no doubt. The special masters—three experienced jurists—so found. The underlying evidence was compelling.
“[Judge Adams] attended high school in San Diego and was graduated from the University of San Diego Law School in 1965. He was number two in his class academically, received the highest grade in his classes numerous times, worked on the Law Review, and was designated the outstanding graduate of 1965. In 1983 he received the alumnus of the year award from his law school. After law school he received a Ford Foundation Fellowship Scholarship Stipend in Political Science and went to work for [Senator] Mark Hatfield of Oregon as a speech writer. He then served in the military, worked for a future Attorney General of Oregon and then returned to San Diego to practice law. He practiced as a Federal Public Defender for six months and then joined his father in a law practice for approximately seven years. [Citation.]
“[Judge Adams] was appointed to the San Diego Municipal Court in 1975. While on that court he became heavily involved in the design of courts, spending many hours developing the East County Regional Center and lobbying that project through the Board of Supervisors. Beginning in 1975, [he] also participated in the so-called El Cajon Experiment, which project authorized Municipal Court Judges in El Cajon to perform certain superior court functions, both civil and criminal, in the El Cajon Municipal Court facility. This avoided the apparent necessity of establishing a branch superior court in El Cajon. [He] redrafted a bill to establish this experiment and lobbied it through the California Legislature. This project increased court efficiency in both criminal and civil matters and is still being utilized.
“[Judge Adams] was appointed to the superior court in 1979 and elected and re-elected for successive terms in 1980, 1986, and 1992. After about one year in the domestic relations department, [he] was assigned to juvenile court for several years. There, he became actively involved with legislation and programs to keep children out of the California Youth Authority. One, called ‘Children In Placement[,‘] involved several hundred volunteers, each assigned to monitor two or three cases for the juvenile court. This program is still operating.
“In a further attempt to help children in the juvenile justice system, [Judge Adams] initiated cooperation between the court and Vision Quest, an organization which works with children, providing them with alternative activities to delinquency involvement. The San Diego Juvenile Court is still using this means of delinquency prevention and rehabilitation.
“[Judge Adams] served in various trial departments until 1987, when he became heavily involved in cases alleging construction defects in residential housing tracts, which comprised a very important part of the case load in San Diego county in ensuing years. These cases involved numerous parties and attorneys, called for extensive discovery and other pretrial procedures, and placed a premium on skillful and diligent case management and settlement efforts. By 1988, he was generally considered the judge of choice by counsel on all sides of construction defect cases, and all such cases were assigned to him for management purposes.
“During his time on the bench, [Judge Adams] has also taught in several law schools. He taught trial technique for five years at the University of San Diego Law School, later taught juvenile law at California Western University, and then constitutional law for five years at National University. He has also taught at a number of Continuing Education of the Bar and Rutter Group programs.
“. . . . . . . . . . . . . . . . . . . . .
“While we are concerned about [Judge Adams‘s] behavior in certain respects—especially as to the charge in Count Four regarding his responses to the Commission [on Judicial Performance‘s] staff, and as to Count One his failure to appreciate, at the time, the possible public interpretation of his engaging in business dealings with an auto dealer [James Williams] and an attorney [Patrick Frega] in whose favor he had previously rendered a huge judgment, we have seen no evidence that his judicial work was based on anything other than the merits of the matters he was handling. We see him as an unusually competent and innovative judge who used poor judgment in certain instances, rather than as a scoundrel who has disgraced the Bench. This proceeding does not involve an evaluation of his total performance as a judge, but to the extent that the evidence from 57 witnesses has touched on that question, it suggests that he might come out well on such a test.”
Just as there is no doubt that Judge Adams has been a good judge for his 20 years on the bench, there is also no doubt that he has subjected himself to discipline by certain of his acts and omissions off the bench. Indeed, he concedes the point.
But what discipline is appropriate for Judge Adams? Removal from office? I think not.
In determining appropriate discipline under former subdivision (c) of
The discipline that is appropriate for any given judge is the sanction that is necessary to achieve the goal of protecting the public and the judicial system itself. (See Kloepfer v. Commission on Judicial Performance, supra, 49 Cal.3d at p. 865.)
As to Judge Adams, removal is not necessary for that purpose. From all that appears, public censure would be adequate: he has shown himself to be willing and able to reform.
Let us focus on what all apparently agree to be the most serious charges, those contained in count 1 and count 4.
It cannot be denied that Judge Adams deserves discipline for his acts and omissions in count 1. The incidents involving automobile dealer James Williams and Attorney Patrick Frega were several. But, as the majority show, all of them occurred within a period of time that was relatively brief. And, as the majority effectively concede, none of them was tainted by venality.
Neither can it be denied that Judge Adams deserves discipline for his acts and omissions in count 4. His responses to inquiries by the Commission on Judicial Performance were in fact inaccurate and incomplete.
Contrary to the majority‘s conclusion, however, they did not constitute wilful misconduct.
Wilful misconduct has been defined simply as “unjudicial conduct which a judge acting in his judicial capacity commits in bad faith . . . .” (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 284 [110 Cal.Rptr. 201, 515 P.2d 1].)
The majority assert that Judge Adams was “acting in his judicial capacity” when he made his responses. (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 284.) He was not. A physician is not providing medical services when he participates in an investigation into his conduct by the Medical Board‘s Division of Medical Quality. Similarly, a judge is not performing judicial functions when he participates in an investigation into his conduct by the commission.
The majority also assert that Judge Adams made his responses “in bad faith.” (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 284.) He did not. The question, of course, goes to his state of mind. The special masters, who saw him testify and heard his testimony, found in his favor. The majority have no basis to do otherwise. They ought to give such a finding “special weight,” reflecting as it does the special masters’ evaluation of his credibility. (Fitch v. Commission on Judicial Performance (1995) 9 Cal.4th 552, 556 [37 Cal.Rptr.2d 581, 887 P.2d 937].) Instead, they give it no weight at all. Furthermore, they totally ignore the following undisputed fact, which the special masters evidently considered of critical import in this regard. At the time pertinent here, Judge Adams‘s fiancée, now his wife, was suffering from life-threatening breast cancer, for which she was subjected to various surgical procedures, and she then faced the prospect of life-threatening radiation treatment as therapy against the malignancy. Judge Adams had given himself over to caring for her, and was altogether preoccupied with her condition. Perhaps if these circumstances had not obtained, the majority‘s claim that he “either knew or should have known that his responses were either inaccurate or incomplete” might be sound. (Maj. opn., ante, at p. 910.) But since they did, their assertion is undermined by common human experience.
As to Judge Adams, as I stated above, removal is not necessary to protect the public and the judicial system itself. Certainly, such a sanction would be sharply out of line with our prior decisions. The majority recognize as much. “In past judicial disciplinary proceedings that have resulted in a judge‘s removal from office, the misconduct that we have determined justified this most severe of disciplinary sanctions generally has involved a pattern of arbitrary, irrational, and inappropriate conduct of the judge while acting on the bench in dealings with litigants, attorneys, witnesses, and other persons, or while otherwise performing his or her judicial functions, and an abuse of his or her judicial powers and authority.” (Maj. opn., ante, at pp. 912-913,
All that the majority can say in support of removal is that, in their view, Judge Adams‘s “extrajudicial transactions” have “creat[ed] an appearance of serious impropriety” and have “thereby tend[ed] to diminish the public esteem of the judiciary . . . .” (Maj. opn., ante, at p. 914.) In so many words, they announce that he must be removed because of certain of his acts and omissions off the bench, even though he has in fact properly performed his judicial functions during his long tenure and, as the record shows, has actually increased his community‘s confidence in its judges. No reasonable person could agree. I surely cannot.
Because the appropriate discipline for Judge Adams is not removal but public censure, I must, and do, dissent.
Petitioner‘s application for a rehearing was denied September 14, 1995. Mosk, J., was of the opinion that the application should be granted.
Notes
The prior version of canon 3 pertaining to disqualification (which governed petitioner‘s obligations of disclosure and disqualification under the circumstances alleged in the formal notice) did not contain the following commentary, which appears in the 1992 version: “A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification.”