*1 No. Oct. 31751. [L.A. 1984.] Court, Petitioner, GUBLER,
MARION E. v. Judge Municipal PERFORMANCE, COMMISSION ON JUDICIAL Respondent.
Counsel Gibson, Dunn & Crutcher, Chernick, Richard John E. Burns Charles J. Stevens for Petitioner. Larson,
John H. County (Los Counsel Donald K. Angeles), Byrne, Chief Counsel, Deputy County Robert C. Lynch, Assistant Chief Deputy County Counsel, Crane, Gary Watkins, M. & Black, Latham J. Boyd Argue, Preston, Pearson, Harbison & and Lew Myers W. Cramer as Amici Curiae behalf Petitioner. John Moore, K. Van de General, Kamp, Clark Attorney S. Assistant General, Attorney Anderson, Gary R. Hahn and Robert R. Deputy General, Attorneys for Respondent.
Opinion THE COURT.* E. Gubler of On petition Judge Marion the Municipal Court for the Burbank Judicial District of Los we review Angeles County, *7 a recommendation of the on Commission Judicial Performance that he be publicly censured for “wilful misconduct office” and “conduct prejudi cial to the administration of justice that office dis brings judicial into (hereinafter repute.” (Const., wilful misconduct and conduct prejudicial) VI, 18, art. (c) 8, subd. set out at fn. § We the commission’s post). adopt Bird, J., Mosk, J., J.,† J., Kaus, Grodin, J., J., *Before C. Reynoso, Sapunor, Darrah, J.† by Assigned the Chairperson † Judicial Council.
34 of petitioner’s conclude that some findings,
recommendation and we though to con- only amounted the commission deemed wilful misconduct acts that duct prejudicial. to obtain zealous efforts
Most relate to his of the charges against petitioner cost of the legal to the for the county from criminal defendants payment arise defender. Other charges them the provided by public representation officers to peace out of orders sales authorizing private guns confiscation, subjected had by guns defendants whose convictions destruction, or auction police department. three 1982 before special were held in November and December
Hearings (See Cal. Rules masters, of law. who made of fact and conclusions findings that Court, concluded rule et the masters 907 As some seq.) charges, others, established, they con- no been had ground discipline in conduct petitioner prejudicial. cluded had engaged had the masters some of charges The commission dismissed find- all the masters’ substantially deemed but otherwise unproved, adopted wilful of them established adverse to and concluded that most ings vot- The commission prejudicial. while the rest showed conduct misconduct censured; the three be publicly ed six to three to recommend that petitioner favored admonishment. dissenters private sus the commission
This court is concerned with the charges v. (Spruance if should be imposed. tained and with what discipline, any, 778, 784, 5 fn. (1975) 13 Cal.3d Qualifications Commission on Judicial our 841, 1209].) indepen 532 P.2d We must determine Cal.Rptr. [119 are against petitioner whether the findings dent evaluation of the record our own con make evidence and must convincing clear supported (Geiler v. Commission clusions of law and determination as to discipline. 270, Cal.Rptr. 275-276 Judicial Cal.3d Qualifications [110 with, and gen are consistent 201, 1].) The commission’s findings 515 P.2d who, however, to, masters, made additional erally similar findings re nor nature, adopted were neither mostly findings, exculpatory findings masters’ weight We give special the commission. jected by be who testified of witnesses that reflect their evaluation of the credibility (1981) on Judicial fore them. v. Commission (Wenger Performance 954].) 630 P.2d Cal.Rptr. Cal.3d [175 Attorney Practices Fees Collection in pe improprieties deal with findings of the commission’s Many *8 county to the defendants for by to enforce orders payment titioner’s efforts orders were made services. Those for the costs of the defender’s legal public if, 987.8, to Penal at the conclu- Code section which pursuant provides court, that a the court determines sion of a criminal a trial proceeding or a the defender court-appointed defendant who was represented by public counsel, the court has the to all or of the cost of ability pay part in the manner in county shall “order the defendant to that sum to the pay with the defendant’s which the court believes reasonable and compatible manner financial Execution be issued on the order the same ability. may be enforced by as on a in a civil The order . . shall not judgment action. . contempt.”1 During the indicated. events 1Allsection references are to the Penal Code unless otherwise masters, hearings the findings, described in the at the time of the before commission’s and (see 1): provided section 987.8 as follows Stats. ch. § assistance, “(a) through the any provided legal In case in which a defendant is either court, private by upon defender or conclusion of the criminal appointed counsel the court, proceedings hearing, a determination of the may, in the trial the court after a make ability may, present pay of the the cost thereof. The court portion defendant to all or a discretion, hearing in its hold one months of the conclusion of the such additional within six discretion, appear to before proceedings. may, criminal The court in its order the defendant county designated by ability a officer the of the defendant inquiry the court to make an into pay to be portion legal provided. hearing, all or a of the At the defendant shall assistance a have, to, person, present entitled to but to opportunity shall not be limited to be heard evidence, wit- documentary witnesses and other nesses; adverse and to confront and cross-examine defendant, against disclosure of the a written statement of evidence and findings ability of the present court. If the court determines that the defendant has cost, pay part all or order the the court shall set the amount to be reimbursed and pay county defendant that sum to the in the the court believes reasonable manner which compatible may with be on the order ability. the defendant’s financial Execution issued in the judgment pay part same manner as on a all or of the in a civil action. The order to costs shall not be enforced contempt. “(b) court, Prior furnishing legal to the the court shall counsel assistance give proceedings notice to the in the trial upon defendant that the conclusion of the criminal court, may, ability hearing, present the court after of the a make a determination of that, pay defendant portion give all or a notice of the cost of counsel. The court shall also if the ability, court determines shall order him present that the defendant has such the court pay part all or of such that the order shall cost. The notice shall inform the defendant have judgment subject the same force and to exe- effect as a in a civil action and shall cution. “(c) legal sup- Definitions: counsel and ‘legal provided’ The term assistance means examinations, to, portive inves- including, psychiatric services but not limited medical and services, tigative expert testimony provided to assist other form of services preparation defendant in the presentation of the defendant’s case. “(2) reimburse ‘ability pay’ capability The term of the defendant to means the overall costs, include, costs, but portion legal provided, or a and shall assistance (i) not be limited to position; the defendant’s: Present financial “(ii) Reasonably the court consider position. discernible future financial In no event shall determining period hearing purposes of more than six months from the date of the reasonably ces, finds unusual circumstan- position. discernible future financial Unless the court reasonably not to have a prison defendant sentenced to state shall be determined defense; ability discernible future financial to reimburse the costs of his “(iii) within a six month employment Likelihood that the be able to obtain defendant shall
period hearing; from the date of the “(iv) Any capability financial may upon other factor or factors which bear the defendant’s *9 Making Attorney Payable Fees Fines Before found; an
The In where both a fine was levied and commission cases 987.8, fee and was attorney payment post- order was under section imposed before the usual to make the fee payable was poned, petitioner’s practice fine. describe between June 1979 and December 1980 findings 29 cases for in which made of the ordered fees were such orders. Most petitioner $100; found the $50 or the fines were The commission further that greater. at or the order of was not set the with consent request payment defendant, fees, de- that to leaving were first payments routinely applied fines, and that the fendants to further to subject respect with proceedings to order an unreasonable obstacle satisfaction might present payment and fine. the fine where the both fee defendant unable pay The 29 These evidence. convincing are clear findings supported sheets, introduced described cases are documented of court docket by copies and August as exhibits. A testified that between May defender deputy public the fine. Another made fee before petitioner payable the ordinarily make testified would deputy May January 1979 to petitioner fine; fee as the thereafter the either at the same time or before payable fee A witness the first. February petitioner paid would require had 1980 could who served clerk 1979 and during courtroom in but not vice recall cases which ordered fees before fines petitioner paid versa; his was that it both “guess” ways. went the clerk testified that
Deputy pro- defenders and the courtroom and that very set fees were short ceedings by attorney which petitioner amount of the than the would tell defendant little more generally in fee at five cases and when it was The exhibits include least payable. which, fines delin- fees, became after payment subsequently payable of bench war- and sanctions revocation of issuance quent, (e.g., probation, found, rant) The masters were for that and imposed other delinquencies. however, of incarceration failure that there was no instance in evidence ordered; this was due fine because of use funds to fees pay prior pay with option to a liberal continuance and a service part policy community to fine respect obligations. fees
Petitioner testified it was not to require his general policy briefs, fine his to be before the paid suggested, testimony provided. county legal for the assistance reimburse costs “(d) according to the terms during judgment At rendered pendency time section, may petition the against judgment has been rendered of this a defendant whom a change rendering modify previous grounds on the judgment court to its vacate The court shall ability judgment. regard pay circumstances with to the defendant’s right rendering judgment.” advise defendant of this at time of *10 in which he the exhibits introduced him omitted cases against selectively of cases. ordered the fines But he introduced no evidence such first. paid for He about the due dates also testified that he consulted defendants always if within reason. fines fees and followed their suggestions of of fees ahead
Petitioner also that his orders for argues payment 987.8, him fines were within the broad section subdivi authority given (a), sion to order “in in which the court costs the manner payment legal believes reasonable and defendant’s financial ability.” with the compatible commission) and we Attorney agree, General (representing replies, that orders which would been within statutory otherwise have discretion became an abuse of that discretion when used to prolong for and create the availability sanctions fines nonpayment impression that such sanctions could also be for of fees. nonpayment imposed
As will be ahead of fines explained, fees practice making payable one several means among improper employed by petitioner conduct, enforce fee with attorney orders. That together pattern issues, weight the masters’ our given resolution of reinforces credibility determination that fact in the petitioner engaged practice question. Ordering Appearances Fee-Collecting Purposes
The commission found that established a of “unlaw- practice fully ordering repeated for the sole of collection of fee appearances purpose orders.”
Petitioner testified as follows: He felt not the “some obligation,” though 987.8, “exclusive to collect duty,” fees assessed under section but he had few available means of collection other than the case “[continuing] until him if was able to or it and pay” “continuing asking [the defendant] he needed more time.” The form bureau of re- county’s provided by sources and collections “had no on the form that said that are you place So, ordered to return. we had the defendant a little that said that is stamp return, there, ordered to that we would the only way is stamp that we could continue control over the at all was to have just situation him come back within time a reasonable and ask him if he had period it.” The paid defendant would be “ordered the court to come back on a date him particular because it’s in order to resolve the case to ask necessary some about questions his haven’t this Are ability: Why thing? you you paid still Do need to do it unemployed? you more time? Would like some you different way? Would like to do Somewhere you along service? community the line find out you can’t do some of these then refer you things, you it to the Collections, “And Department and let them take care it.” and didn’t
there were occasions back two or three times when came people Bureau of I do we referred it hadn’t when recall that pay, paid, time, and it been referred prior.” Resources and Collections at hadn’t ordered, If the defendant failed warrant for his arrest bench appear issued, an order to disobeys would be as in the case of a witness who appear. *11 un and that testimony
This is clear evidence convincing petitioner for Section 987.8 does lawfully ordered collection. appearances purposes to not issuance to return court authorize of orders the criminal proceeding initially for that a court that has ability Even on the issue of purpose. pay, before determined issue limited to additional hearing that is one ordering county the six court within months an before plus appearance designated officer. Petitioner forbids enforcement expressly the statute recognizes appear of fee orders but his of bench warrants compel use contempt, (as ances the distinct from interrogation for on defendant has not why paid threat of investigation ability to amounted to incarceration pay) using for collection purposes.2
Mervin Anderson Incident 11, Kaufman 1979, ordered commission found: On December Judge $25 $65 Mervin an fee attorney
defendant Anderson to a fine and pay 14, 1980. clerk refused to Anderson’s January On January accept assigned $65 check consulted his for fine Anderson payment only. defender, Gelder, Anderson to write “fine Edward Van who advised public clerk, the clerk on the check it and further advised only” and retender to the check, that the should credited it check be The clerk accepted. accepted fine, January to the next 16. day, and the matter to reported petitioner was On who at what he believed public was January petitioner angry orders, a con- defender had interference with enforcement of fee that Judge versation with Van on the He told Van Gelder Gelder subject. insufficient, ordered to order Anderson was wholly Kaufman’s fee 6, 1980, $25 on or of February fee before a continued date pay hearing and that warrant would issue if he neither nor a bénch appeared, paid A $200 $250. written order his arrest and he fees of or would assessed for payment was made on the to 2-7-80 at 2:00 p.m. docket: “Continued the Burbank judge 2In one petitioner, addition to there was other a commissioner judge, other C. Bernard Municipal testimony by the Court bench. Petitioner introduced Kaufman, they comply did with appear too if not that he would order defendants to court clerk) by prescribed date. pay attorney county (through an order the court fees to the practice does not make the showing judges engaged improper practice A other an may later, judges’ knowledge practices proper though, pointed of other out be relevant the issue of bad faith. defendant to be $25.00. of Public Defender If not then fees of fees paid, did not cited back into court and new order made.” Anderson pay appear, told Van continued matter several After petitioner times. arrest, Van Gelder he was a bench warrant for Anderson’s going issue Gelder $25 fee to the clerk on March 3. personally paid 15, 1980,
Petitioner testified: He called in Van Gelder on January received from the confronted Van Gelder with a had report petitioner just clerk that Van Gelder that Anderson did had told the clerk and Anderson not have to he had told Anderson pay attorney fees. Van Gelder said only that he need not Petitioner reiterated attorney fees at that time. pay he would not tolerate their not to ordered defenders clients telling pay fees. He also told Van Gelder: “Now look at what kind of situation you $25, have created here for us at the court: We have an and we don’t unpaid have continuance date. The man isn’t ordered to return back.” Van *12 Gelder court, to have agreed Anderson come back to or by calling writing him, and made the docket petitioner February order the matter continuing did 6.3 He not threaten to $200 $250. raise the fees to or threat, however, of that making testified to Van convincingly Gelder, who described at in his conversations with con- length petitioner nection with the Anderson matter. We conclude the commission’s find- that on the ings subject are clear and evidence. supported by convincing Similarities between the Anderson incident incidents described and other in the illuminate findings to the patterns making petitioner’s approach Thus, (Rueda, enforcement of fee orders. there are other De Car instances olis) in which to have petitioner reacted to unwelcome actions appears defender public to increase the amount of by threatening attempting fees ordered without to redetermination of regard ability pay. fees, Apart threats to raise Anderson incident illustrates two collection petitioner’s (1) established other practices findings: making sure that fees were before paid lost to enforce petitioner power payment the fine and orders to using court as a means of appear enforcing payment fees.
Recording Fee Orders as Condition Probation Apparent
The commission found: Fee orders the form were recorded on frequently order without notation that not condition of probation the order was court, 3Petitioner agreed testified that when Gelder come back to Van to ask Anderson to petitioner put said: We’ll represent your “Fine. it over. You can client.” That statement seems finding petitioner inconsistent with the masters’ that “the belief that Public had legitimate participating setting Defender has no or col interest the civil function lecting fees.” if a Only it was a condition. that thus creating impression probation, by writing e.g., did make exceptions, defender objected petitioner on the form. “not a condition of probation” fee order appears include 10 cases in which
The exhibits
the space
opposite
under the “Terms of Probation”
order
probation
1,
July
June
made between
“Other.” These orders were
found,
one exhibit
attention,
have
to our
and we
1980. Petitioner calls
9, 1980) in which petitioner
June
(Orellana
an order dated
containing
such an
(or
after
added,
its equivalent)
“Not a condition of probation”
20, 1980)
apparently
May
petitioner
On another order
entry.
(Rodriguez,
form, and made
the fee order on the probation
had entered and crossed out
boxes could
form on which
an
order on a
printed
equivalent
separate
instead,
or,
through
clerk
the fee
the court
checked for
payment
through
case,
pro-
In that
petitioner
bureau of resources and collections.
the county
{Rueda) it
case
appears
In still another
vided for
clerk.
through
payment
order on the
3, 1980,
proba-
deleted a fee
on June
similarly
petitioner
box for
checked the
form but
form
made the order on the separate
tion
defenders testified
bureau. Three
county
deputy public
through
payment
form, he did not
order on the probation
when
entered the fee
condition of probation.
order was not a
the defendant that the fee
advise
fees cannot
of attorney
Petitioner conceded in his testimony
payment
*13
that he
He testified
section 987.8.4
a condition of
under
made
probation
conditions
were not
the fee orders
did not write on the
forms that
probation
de-
with the deputy public
he had discussed the issue
of
because
probation
was never
a fee order
with them that
fenders and had an understanding
207,
143],
court unan
(1969)
455
this
Cal.Rptr.
P.2d
4In In re Allen
Petitioner officers of the same of two other presented testimony judicial court, Kaufman and too wrote Judge they Commissioner Murphy, fee orders “Other” on the form for terms of opposite probation, though Commissioner word “Other.” Peti- added that he crossed out the Murphy tioner evidence that correctly out in his brief that there was no direct points defendant fee fact misled into that the order was thinking condition Petitioner in Rue- probation. also to the masters’ points finding Defender, da that “to the of the Public had no inten- knowledge tion of the fee enforcing order as a condition of But the masters probation.” also found that “the of the fee order on the Rueda unexplained presence order probation had the defendant Rueda to believe that potential leading of the fee order payment was a condition of probation.” The commission’s in a as to fee orders finding petitioner’s recording way that created the were thus is impression they conditions probation supported by evidence that is not clear but also uncon- and convincing tradicted.
Extraction Attorney Fees Bail Deposits
The commission found that extract was to petitioner’s “general practice from a defendant’s bail satisfy the amount of needed to posted money *14 assessed or con- attorney’s fees” “whether or not the defendant requested sented to same.” The in which describe seven cases findings petitioner, 4, 1979, 22, 1980, between June fees attorney ordered September paid cases, bail. Court are posted confirming findings, records those in evidence.
A fees attorney defender testified that ordered deputy public petitioner taken from bail without choice in the matter. posted defendants giving He recalled if objec one instance in which asked there were only petitioner order; there, tions to the to the amount the defendant responded by objecting (Hock) of the fee. A in the findings defendant one of the cases described testified that he money was not asked if he to of his bail objected application asked, objected. he would have fees, been and that if he had attorney fees attorney money bail applied testified that he never ordered
Petitioner findings commission’s consent. The masters’ without the defendant’s evidence. and convincing clear contrary by to the are supported sentence contends, however, following Petitioner now fees attorney applied authorized him to order bail deposits section 1297 on remains money “If the bail] without the defendant’s consent: [for even must, fine, the clerk a the time of a for judgment payment at deposit court, apply be the depositor, direction if the defendant under the costs, must the fine and thereof, satisfying in satisfaction and after money added.)6 Petitioner (Italics if to the defendant.” any, refund surplus, to withhold the clerk authorizes that the “costs” which section 1297 argues assistance of legal include the “cost” from the refund of a bail deposit de to order the the court (see 1, ante) which section 987.8 fn. empowers fine and “satisfying for fendant to to the pay county. provision it was do not think and we 1297 since costs” has been section part reimbursable services, first became which intended to refer to costs of legal enactment, of section under the initial to the a later county century if in Nonetheless, enough plausibility has 987.8. petitioner’s argument entire fine well as the fees as attorney on it in deducting fact he had relied not have amounted defendant, would the reliance from bail deposited by to misconduct. however, application
In orders made other respects, absence of in the clearly improper of bail fees were attorney deposits Chavez, (flock, Stephens) In three cases consent interested parties. fee but only attorney amount of the was to the entire money bail applied fine of a with a balance left thereby of the fine. The defendant was part all sanctions, money pay use of the bail criminal whereas enforceable by .balance, collectible fee the fine would have left an simply section 1297’s violated clearly Such orders the manner of a civil judgment. thereof” in satisfaction money command that the clerk “must. . . apply “never,” testimony direct examination citing on his reply 5Petitioner’s brief denies he said subsequent cross- testimony given in concerning procedure.” The “never” his “normal examination. 1, 1981, provided January section 6Before an amendment that took effect of the in the name be issued receipt shall money deposited, “When has been follows: of a payment judgment for the time of a money deposit remains on at the depositor. If the court, apply must, depositor, be the fine, defendant if the the clerk under the direction *15 costs, refund the thereof, must satisfying the fine money in and after satisfaction deposit was issued receipt for the to whom the surplus, any, person if to the defendant. If the days within 10 defendant, to him be returned judgment after shall deposit not the days of and, within 10 not made if a claim is by submitting receipt, it after he claims bail, of the exoneration notify depositor immediately the clerk shall the exoneration of bail.” then, (necessarily fine); to the the fine and referring after only “satisfying costs,” is the to be refunded. surplus
Another (Munden, type Callaway, is seen three cases impropriety Garcia) in which ordered out of bail petitioner attorney deposited fees paid other by persons than the defendant. Section that bail deposits 1297 provides must be returned to a nondefendant demand no on and authorizes depositor (See 262, deductions. Rodman v. Court 13 Cal.2d Superior [89 109).) P.2d Petitioner’s bail fur- testimony money was that he would apply nished aby nondefendant with the only fees depositor attorney depositor’s consent. But the records of three forms for those cases contain “As- printed Bail signment Cash only Deposit,” signed by depositors, providing application to a not to other deposit fine, attorney fees or any costs.
Disputing commission’s that with to bail he finding respect deposits “usually fines,” ordered fees to be attorney before cites two paid petitioner instances which he fines and imposed ordered fees but required fines be taken out of bail. But even cases are those consistent with petitioner’s aim of apparent where situation avoiding, any possible, that would leave a defendant with an fees unac- obligation pay attorney companied by other criminal that could be enforced obligation through sanctions. In one 28, 1980, (Fernandez) these cases on January petitioner ordered a fine and $380 $300 penalty assessment as follows: totaling payable bail, forthwith from $80 with the balance of due on March 10. An attorney’s $50, however, fee of was made on In the other case payable February 29. (Warner), on Friday, January $250 ordered a bail de- petitioner posit applied $100 the fine and ordered immediate for legal payment fees; the latter was paid Monday, January 14. there is
Finally, no evidence that relied on petitioner any particular legal when he made theory the orders to to attorney cash bail fees apply deposits or, without the defendant’s consent where a third had party deposited bail, the consent of that He testified that he obtained that party. always consent, but to the giving masters’ resolution of testimonial conflicts weight exhibits, examining we conclude that pertinent during period it question consent, was petitioner’s not to obtain the and that he practice in that engaged without practice to its regard legal justification.
Presence and/or Misconduct Degree Attorney in Petitioner’s Fees Col- lection Practices
The commission made a blanket “engaged finding in a course of conduct above . which fees as set out . . concerning attorney’s *16 to the admin- constitutes wilful misconduct in and conduct prejudicial office ” The into con-
istration of office justice brings disrepute. judicial headings, clusion to all the hereinabove under applies findings discussed Fines,” Payable “Ordering Appearances Fees Before Attorney “Making Incident,” for “Recording “Mervin Anderson Fee-Collecting Purposes,” Probation,” of At- Fee Orders as Condition and “Extraction Apparent Fees from Bail torney Deposits.” masters, hand, consti- those acts on the other concluded that none of
tuted wilful prejudicial: misconduct but acts were conduct following believe fees was “leading required defendants to that payment attorney’s and, in the Mervin as a with imposed” criminal sanctions part compliance case, fee order.” The Anderson to increase another “threatening judge’s ordering masters further concluded that in payment “practice defendant, while of fees first from without the legally bail consent erroneous,” was neither wilful nor conduct prejudicial. misconduct on findings peti-
The masters those with additional bolstered conclusions activities; tioner’s and these summa- professional standing may findings rized as Petitioner is an court experienced municipal follows: able He has become officers of his court. judge, highly judicial respected known and well of other Los widely Angeles County respected by judges courts, Courts, of those and has contributed to the Municipal efficiency his Association activities Court through Judges’ extensive Municipal Association, of which of Los Angeles County Judges’ Presiding involved he is a founder has He was served all offices. particularly 987.8, in a of section the latter association for project implementation it uneconom- and since bureau of resources and collections found county $100, ic to fee he a developed collection of orders of less than attempt court of his for smaller fees clerk procedure ordering paid through of fees remission He that assessment and collection county. believes accomplished under section in the and cannot be 987.8 is interest them- judges “without and zealous court by municipal attention unremitting orders, did to collect that if judges selves smaller fee attempt believing collections, not see to no one else would.” if he made mis-
Petitioner contends that even denies misconduct and takes, or in they were errors correction merely legal subject appeal writ We disagree. proceedings. date for payment some of the acts in such as
Though question, setting a fine an payment fee in advance of the date set legal or even case, misconduct would not constitute particular necessarily isolation, of petition- error when viewed in became misconduct as part they *17 attorney er’s scheme for of to collect larger threats criminal sanctions using fees the of county. provisions ordered to the That scheme violated paid by section of fee orders 987.8 that for collection provide execution as on enforcement by a in a civil action and judgment prohibit contempt.
Central to the who scheme was the defendants failed practice ordering to court, the fees a set to doubt pay date return to not because by (which about their to had been determined ability pay presumably already as a order) to the prerequisite by 987.8 but to coerce simply compliance § questioning them about had com- why they yet not paid, perhaps suggesting munity (a service as an alternative to for which payment suggestion peti- tioner offers no on justification), and then a new date which legal setting the defendant was ordered fee or a either have for paid reappear new round of It was over interrogation. concern interference with apparent this approach at defender provoked anger petitioner’s deputy public who told Mervin Anderson that a fine Anderson could without simul- pay a fee that been taneously paying day. had ordered on same paid of this effectiveness a collection device was periodic interrogation as by enhanced petitioner’s other fee orders to de- practices. appear Making fendants to be a condition probation, lack regardless such, intention enforce them as failure to necessarily suggested pay would jeopardize the defendant’s fine probation status. Ordering payable after the fee made sure that until and after fee defendant paid, would remain to the subject court’s jurisdiction for of administer- purposes the criminal ing sanctions available to enforce fine. A similar payment when, result was achieved in violation of bail Penal Code section were deposits ordered fees even a balance remained due applied though on a fine.
We concur in the accordingly commission’s conclusion that petitioner’s course of conduct described in the sustained hereinabove constitut- findings ed misconduct subject We next must decide whether it was discipline. misconduct, commission, wilful determined or no more than con- duct as determined prejudicial, masters.
Bad faith is the committed touchstone whether misconduct testing aby while wilful misconduct. judge acting constitutes judicial capacity (Geiler v. Commission on Judicial 10 Cal.3d Qualifications, supra, “ 283-284.) intent, faith’ is re quintessential^ concept specific ‘[B]ad quiring consciousness as an antecedent to a ma judge’s acting purpose liciously Qualifica v. Commission Judicial corruptly.” (Spruance “ tions, 778, 796.) has supra, ‘intentionally Cal.3d When com- judge mitted his lawful beyond acts which he knew or should have known were [citation], . as the motivation . . ‘bad faith’ entails actual malice power,’ *18 vo- for a must exceed mere ultra vires. The intent judge’s acting requisite lition; alone, into ques- if not so call its negligence genuineness gross (Id. tion, the acts 795-796.) of Even when falls short ‘bad faith.’” at pp. bad may in were involve they within the lawful question judge’s power, faith, misconduct, “committed thus wilful if for a corrupt and constitute purpose, i.e., any purpose discharge judicial for the of other than faithful (Id. 796.)7 at duties.” p. in a
Conduct when in the course of prejudicial, acting committed faith lacks the element of bad but must judicial capacity, “prejudicial the office into disre administration and justice” “[bring] judicial (Id. 796; Const., 18, VI, (c).)8 at “Bring[ing] art subd. pute.” p. § but that the only office into does “not judicial require notoriety, disrepute” held members of for the judiciary conduct be to the esteem ‘damaging on Ju v. Commission (McCartney who observed such public conduct.’ 260, dicial 512, 526 Qualifications (1974) 12 534 Cal.Rptr. Cal.3d [116 (Wenger Performance, supra, v. Commission on Judicial 268]).” P.2d 615, 622-623, 4.) Cal.3d fn. not fee-collecting prac
We are that wrongful persuaded costs recovering county tices interest in were carried out in bad faith. His An in Los requests by legal originated have representation appears geles County officials to the courts to find means county’s implementing 7Thus, intentionally judge a reject we brief that “where argument in commission’s beyond judicial reasonably which have known was his commits an act he knew or should bad faith authority, mere constitutes commission of the act under such circumstances requires faith a ma and is in and of misconduct.” Bad sufficient itself to constitute wilful knowledge power. corrupt purpose beyond licious mere or constructive lack or active (“ p. ‘Bad faith’ quoted Spruance, supra, 13 Cal.3d at statements in the brief reasonably beyond were encompasses judge . . acts have known . which the knew or should (1983) 3d and 33 Cal. power”) his lawful v. Commission on Judicial Gonzalez Performance 880, (“wilful . intentional Cal.Rptr. misconduct . . embraces 657 P.2d 369 [188 372] judicial authority”) beyond his establish judge have known was conduct that a should may be faith knowledge or done in bad that acts committed with such active constructive act, more, misconduct; without is and constitute wilful it not follow that such thus does necessarily of wilful one misconduct. VI, (c) provides: “On rec the California Constitution 8Article section subdivision (1) may retire Supreme Court ommendation of Commission on Judicial Performance the judge disability seriously performance judge’s of the duties a interferes with the (2) occurring judge a for action likely permanent, is or is to become censure or remove term constitutes years prior judge’s current not more than 6 to the commencement office, duties ha inability perform judge’s in persistent wilful misconduct failure or the admin drugs, prejudicial or intemperance bitual the use of intoxicants or conduct may pri judicial The commission justice brings disrepute. istration office into dereliction of vately judge action engaged improper to have an admonish found causes duty, for review of subject Supreme provided to review in the in the manner Court appeal.” decided a court section In two seeking through 987.8. such means his activities day-to- associations mentioned in the in his judges’ masters’ findings matters, of misdemeanor we not doubt that day handling do he Relevant good faith to serve the interest as saw it. endeavoring to his in similar good faith is his that other were engaged perception judges practices.9
As a determination of already explained, good faith does not preclude conduct It not be prejudicial. is true that a should judge disciplined Kaufman, 9Judge who he too petitioner, sat the same court with testified that *19 by ordered comply pay attorney defendants either to section fees a with 987.8 orders to to particular appear date or court “Other” on the opposite in and entered fee orders setting probation. written order out of terms by Attached to petitioner an amicus brief filed the 2 in which judges’ curiae associations (as primarily findings) was active mentioned in the masters’ are declarations of some 55 Courts, and judges Angeles County Municipal practically commissioners of Los identical in deploring present proceedings, substance. Besides the include the follow- these declarations ing dealing implementation county’s matter with in municipal of section the courts: 987.8 subsequent 13, “That to passage the of Proposition Angeles County the Number Los Board Supervisors began of to request Municipal that the Judges Angeles County Court in Los pursuant make orders to California Penal Code Section 987.8. Presiding “That the Judges’ approximately up in Association 1978 and thereafter took the monthly matter of P. C. meetings, appointed 987.8 Orders at a number of its and a Com- study to proper mittee the toway implement make and these orders. guidelines 987.8, “That there no provided were for but it implementation of P. C. was and by majority Judges discussed decided a Angeles County language of the that the Los of the Statute sufficiently Judges determining was broad to permit wide discretion the services, amount, of costs Public Defender by and payment method and manner of defendants involved. Order, “That the required Statute the Court to make such an and further stated that the attorney’s fees be paid County: shall ‘. to . .in the manner in which the Court believes compatible (Italics added.) reasonable and ability. with the defendant’s financial . . .’ “That complete Financial statement forms were to re- prepared prior for defendants to questing the services of the Public Defender. “That as a of the Supervisor’s request, by Presiding result Board of and of action Association, Judges’ County-Wide practice which re- operation developed or method of sulted in: “(1) Attorney’s fines, fees being paid many ordered prior fees were cases to since the fines, less; smaller than the being $100 or and “(2) bail, defendant, if posted Cash by by person, being or assigned another ordered fees, to used pay attorney’s penalty pursuant fines and assessments to P. C. and cases, many paid smaller; fees before fines because the and fees were “(3) procedure A whereby Judge payment attorney’s would make the Order for of upon defendant, fees based ability the costs and pay, relying upon questions asked of each file, financial any, statements on upon if and other which factors bore the defendant’s capability pay; financial “(4) procedure A collecting Court, for through most small fees and fines the Clerk of the since the Bureau of accept Resources Collections would Orders for collection of more; $100 or “(5) general A opinion by Municipal County, consensus of Judges Angeles Court in Los nature, since Order concerning attorney’s fees is civil in that the Public Defender part would not be proceeding.” said (In declaration, one signed (2), judges, two paragraph concerning application of cash fines, attorney’s deleted.) bail to the fees and issues, for including mere erroneous determination of legal questions on the to reasonable differences judicial subject limitations that are power, (See, Judicial Performance, v. Commission on opinion. Wenger e.g., 646-647, But, 13.) supra, explained, peti 29 Cal.3d fn. were clearly tioner in collection that were engaged practices improper accord carried in order methods. We out collection implement improper ordering ingly conclude committed conduct prejudicial to be orders appearances causing appear fee-collection fee purposes, even bail conditions of fees out of probation, ordering payable posted unsatisfied, and fees making or all of fine though remained part thereby availability ahead fines for the payable prolonging purposes that such sanctions for of the the impression fine and nonpayment creating sanctions could also be used for of fees. nonpayment courts,
For the trial we add that guidance ordering payment not on a fine is section 987.8 fees before balance remaining payment through impression, if the defendant is not necessarily improper given *20 the fees other that any practices engaged by petitioner, payment be deduction may enforced criminal sanctions. As previously explained, consent of section fees cash the depositor’s 987.8 from bail without deposits is under 1297. improper section The
There for the Mervin Anderson incident. remains consideration was it concluded commission included that incident in the course of conduct misconduct, inci concluded, wilful to the respect while the masters with dent, conduct fee order was judge’s to increase another “threatening threat, but also the order We conclude that not prejudicial.” court, collection return to made implementing Anderson for the purpose fee, (See v. amounted Roberts Commission to conduct prejudicial. (1983) 33 Cal.Rptr. Judicial Cal.3d [190 Performance (threats P.2d held to counsel conduct prejudicial).) 1064] Setting Attorney Amounts in Unreasonable Fees (Rueda) Fee Irritation at Counsel Increasing Because of at 3, 1980, fixed an June commission found: On petitioner order $50 on the probation fee of for and entered it torney Alejandra Rueda “Other,” Though of probation. so that it to be condition opposite appeared Rueda, Racusin, represented Public Defender who petitioner Deputy condition of probation, knew that of the fee could not be made a payment his order because the probation Racusin notation of the fee on objected said client Petitioner contrary. be misled into thereby believing might form on a separate he had no other to write the order place except collections, of fees payment bureau of through county resources which did not then fee $100 orders of less than for collection. When accept Racusin maintained his deleted the fee on the objection, petitioner provision order and probation $100 wrote an order for of a fee of payment through the county $50 bureau. The new order was in excess of a reasonable fee. In $100, $50 the fee changing motivated irritation petitioner at what he believed was Racusin’s in the fee-collect- improper participation ing process.
Petitioner testified: $50 When he entered the fee on probation order, (1) Racusin contended there should be no fee order at all and fee requested order be on a form and made separate payable through county bureau rather than the court clerk. Petitioner through told him that the bureau $100, would not an order for less than but accept Racusin form, insisted on a so separate made the new order for petitioner $100.
Racusin testified that when he objected the fee order’s made an being apparent condition of probation, petitioner to cross appeared out something and said “it will $100 fees attorney’s payable through county.” When Racusin asked doubled, the fee was why said that being “the court never sends collection to the $100.” of less than county
Petitioner’s briefs justify his doubling the fee order as a response *21 Racusin’s insistence that it be entered form, on a with the separate coupled $100 minimum collectible the through Yet county bureau. examination of the Rueda fee order reveals that the form printed was for designed making the fee payable either through county bureau or the clerk of the through Indeed, court. the record earlier, includes an order made two weeks just on 20, 1980, May in another case in which {Rodriguez) used the same form printed to order that $100 an fee be paid through court clerk on 20, or before June 1980.
With to respect order, $100 excessiveness of the fee Rueda’s financial statement, in evidence, that indicates she was a maid at Safari employed Inn; her $100 gross $400 was week pay and her take-home per pay per month; she was food, and had a single old her three-year daughter; clothing month; $325 shelter came to a $20 her were assets cash. Racusin tes- tified that petitioner asked Rueda no about her financial condition questions order, before the fee imposing that the financial statement not filled was out until after event, the order had been In it already made. is clear that petitioner’s doubling fee was not based in his information any change concerning defendant’s ability or the services she had re- pay legal ceived, with the defender public but was motivated a desire to even get initial form the order. objecting fees in the Rueda
The act of increasing commission concluded that “[t]he The mas- case wilful in office.” reasonable level was misconduct beyond case beyond ters in the Rueda concluded that act of fees increasing “[t]he a reasonable at of the Public Defender level from irritation the actions ” misconduct The to find wilful conduct masters declined prejudicial. “[bjecause an incident.” the act isolated appears act incident does not preclude fact an is an isolated determination bears simi In fact the Rueda incident of wilful misconduct. of overreach to the Mervin Anderson and to other instances larities incident orders, we have endeavors enforce section 987.8 ing, petitioner’s here to that concluded were conduct The situation is parallel prejudicial. (1983) 33 Cal.3d v. Commission on Judicial Gonzalez Performance 372], “The evidence where we said: P.2d Cal.Rptr. [188 on his own re refused to hear the motion release suggests petitioner [for it who had his mouth’ cognizance] ‘opened because was defender hostile, arbitrary, Such during questioning defendant. judge’s defendant for unreasonable conduct of an liberty indigent jeopardizes constitutes wilful reasons not related the merits of the case and therefore misconduct. here de conduct Though petitioner’s jeopardized [Citation.]” faith is exacerbated liberty, fendant Rueda’s rather than her his bad property his of order could to the excuse that the form clinging printed separate The ex not be the court clerk. used for of fees ordering payment through conclude hibits We demonstrate the of that excuse. falsity patent of irritation at because act of the fees Rueda doubling was wilful misconduct. defender’s deputy public objections Fee Orders Amounts Unreasonable Hock, Nachtmann, cases, and Liscano
The found that in the commission nor com- which were neither reasonable attorney’s “assessed fees petitioner to pay.” with the defendants’ ability the available evidence patible the de- did not question The masters found cases that those petitioner the finan- submitted in fendants to obtain financial that beyond information within statements, cial defendant’s financial expectancies or ascertain the “ability to (see 987.8, (c)(2) [defining six subd. ensuing months § 1, ante.) set out in fh. pay”], Hock, on which “Not”
In a financial statement the defendant submitted that' the indicated was but it was also inserted after “present employment” for the “Mem- “memory expert” defendant worked on “commission” as a ” he had testified Hock assets. minimal Institute. It showed Masters ory a total him to pay ordered cash bail. Petitioner $440 for the borrowed later. bail, days the balance $440, cash and $340 forthwith out of fine of out forthwith was ordered paid fees attorney hundred dollars One about the not inquire did hearing petitioner testified that at his bail. Hock financial on his information other or about any of “commission” meaning or whether bail deposit of his statement, about the source did not inquire fees, about nothing said and attorney he to its agreed being applied no merit There is fees. of attorney on the to a right hearing question fact statement plus financial that the ambiguous argument the fee order. to support afford bail was sufficient Hock seemed able to Nachtmann, 1979, pay was ordered 8, the defendant In on August 12. $50 by September fee attorney $130 October and an fine of testified statement, Nachtmann though no financial The court file contains He testified finances. with dealing he defender a form gave income, expenses, about his employment, asked him no questions petitioner he was debts, unemployed He testified financial statement. or about his but hearing, Nachtmann recall the he did not at the time. Petitioner testified his employment. about Nachtmann he “would have had to have” asked 21, 1980, Liscano was that on January The Liscano docket sheet shows (2) and $175 $350, by April $175 29 and February fined payable financial state- 22. His February $100 by ordered to an fee of pay He was worked 1975. and had last ment indicates he was unemployed Jason, who testified as Public Defender in the case by Deputy represented but only indigent was not that the defendant follows: Jason told petitioner to obtain retarded,” much” unable “borderline and so mentally “pretty and employ- property into the defendant’s Petitioner inquired employment. immediate prospects. he had no the defendant said ment prospects; Center for at the volunteer work he was doing defendant also told petitioner Petitioner Disabled, therapy. of his rehabilitation as part Developmentally not and was unemployed he the defendant said testified at hearing service”; that he was “volunteer he doing because was seeking employment that he find employment; not disabled was “expecting” the de- evidence that all this clear from with his It seems living parents. within the obtaining employment fendant had no reasonable prospects 1, ante.) 987.8, out at fn. (c)(2)(ii), set (See subd. six months. ensuing § Liscano, Nachtmann, Hock, assessed find that in We *23 to evidence available of the light that were unreasonable attorney fees concur the conclusions We ability pay. as to the defendants’ petitioner that acts were conduct prejudicial. masters those and the of the commission Giving From Which Unsolicited Advice on Case Disqualified Had Been
Petitioner Carolis, 27, 1980, and The found: In De on August commission incarcerated, filed a declaration while the defendant was defender public Civil under section 170.6 of Code against prejudice petitioner 170.6). (hereafter grant court superior Procedure section On August ed a habeas criminal writ of terminated effectively proceedings, corpus fees, if any, for determination the amount leaving for the defender’s services. county awarded the under section 987.8 note facts, 2 wrote the following those on Knowing petitioner September court: an of petitioner’s addressed to Commissioner Murphy, employee for all PD’s work $500.00 “987.8 should be held. order hearing Suggested Bureau of re thru Co. Petition and Order Habeas including Corpus payable matter MEG.” The fee hearings. PD to have no in such part Collections. Kaufman, of the same was not but by Judge heard Commissioner Murphy court, that he ordered fees 5. The docket sheet indicates September masters, in the $400. the commission findings The who made the same as matter, note. found that Kaufman was not influenced petitioner’s Judge The the defendant remanding court file evidence includes the order 26, and August signed by dated custody, petitioner. been before disqualified
Petitioner testified he did not remember having note (which his But the handwriting). note he was writing the acknowledged file, declara- was on case the clerk the section 170.6 who accepted it declaration with tion for said was his filing practice put original The facts as possible. case file and to inform the affected soon judge found are otherwise undisputed. note concluded that petitioner’s writing commission and masters
was an (1) petitioner three It created wrongful impression respects: at the who serves to influence the decision of a commissioner trying deterred should have (2) The section 170.6 declaration pleasure court. to decide the matter. from other officers on how judicial advising give should not from the 170.6 Apart judge section disqualification, a matter officer on how to decide unsolicited advice to judicial another discretion; com- is to be distinguished within the latter’s such advice factual matters. municating been so of the note would have
We writing do not agree if there had been no section judicial as warrant clearly discipline wrongful than addressee had been a fellow rather judge 170.6 and the disqualification *24 53 a subordinate judicial 3(A)(4) officer. Canon of Judicial of the Code Con- law, duct states: “A ., should judge . . as authorized neither except initiate nor consider ex or a parte other communications concerning pending or impending to the canon states: “The proceeding.” commentary pro- scription against communications a . . . does not concerning proceeding a preclude from judge with other or with court consulting judges, personnel whose function is to aid the out his judge carrying adjudicative respon- sibilities.” the word Though intended to refer “consulting” probably discussion initiated a with by judge connection his her own adjudicative responsibilities, we are not aware of limitation on com- munication among of the same court judges that is clear to war- sufficiently rant labeling unsolicited advice to one from another who is not judge judge disqualified as misconduct.
The disqualification of 170.6, however, petitioner under section rendered writing note an act that he knew or should have known was beyond his authority. it Preliminarily, is clear that the disqualifica tion barred from himself fees in the matter un ordering attorney der section 987.8.
In argument court, to this petitioner disputes premise, citing Wenger v. Commission on Judicial Performance, 615, There, 29 Cal.3d supra, 646. the petitioner had asserted in the trial court that a section despite 170.6 disqualification, “an within arraignment remained his be- hearing power cause section 170.6 disqualifies from a case or judge only trying hearing ‘any matter therein which involves a contested issue of law or fact.’ That view had at least merit enough of it prevent from holding constituting (See misconduct. (1979) v. Court Superior 94 987 Cal.App.3d Mezzetti [156 Cal.Rptr. (disqualified held hold judge 802] authorized to settlement con- ference); Fraijo v. Superior (1973) Court 34 222 Cal.App.3d [109 Cal.Rptr. (plea (1979) But see In re bargain). Byron B. 98 909] Cal.App.3d 300 Cal.Rptr. [330] [159 admission of (acceptance juvenile’s guilt); 430] Lyons v. Superior Court Cal.App.3d Cal.Rptr. [140 (plea (Id., at bargain).)” 13.) fn. p. 826]
Here, however, it is irrefutable that the of an fee under setting section 987.8 “involves contested issue of law or fact” within the meaning of section 170.6. Petitioner that the section argues 987.8 was not hearing the same action or proceeding which he was because it disqualified was a civil matter that could be separate heard only conclusion of “upon (§ 987.8, the criminal in the trial court” proceedings (a)). subd. The con- *25 the fee- tention is for the holding meritless: section 987.8 calls clearly of, of, in which at the end but the criminal action setting hearing part rendered, followed were that was the legal procedure services court. petitioner’s from hearing
Since was under section 170.6 petitioner disqualified issue, it for him unsolicited was to fee-setting highly improper give to disqualify advice another officer on how to decide it. The judicial right on Judicial (McCartney a section v. Commission judge, guaranteed by 170.6 512, 531; Court Qualifications, 12 Cal.3d see v. supra, Solberg Superior (1977) 1148]), 561 would 19 Cal.3d P.2d Cal.Rptr. [137 undermined and vitiated if the were judge permitted perhaps disqualified officer circumvent advice to by judicial another disqualification initiating how to on decide the matter.
There was additional from petitioner’s disqualification impropriety, apart 170.6, was under section fact that Commissioner arising Murphy court to not a but an by petitioner’s officer full-fledged judge appointed VI, (Const., 22) art. “under “subordinate duties” perform judicial § (Gov. Code, 72190). direction of As the in ser- senior judges” judge § say vice of the alone had the ultimate judges, petitioner court’s two (Gov. Code, 72192.) On the whether hire fire the commissioner. § hand, other commissioner by had all the judicial obligations imposed was to discharge California Code of Judicial Conduct and thus required Conduct, can- (Cal. his duties Code of Jud. impartially independently. foil, 1, 2(A), ons Conduct” 3(A), with the Code Judicial “Compliance 7.) his canon For as the to whom the owed commissioner petitioner, judge office, continued con- tenure in the latter unsolicited advice thrust upon commissioner’s deter- matter entrusted to the cerning impartial judicial inter- mination if intolerable was bound to create not seemingly, actually, ference with the commissioner’s impartiality. was wilful
The concluded that of the note writing commission petitioner’s order, obtained misconduct. We court’s habeas superior agree. corpus declaration defender filed the section 170.6 deputy who had of the criminal resulted in final termination prejudice against petitioner, incar- three after had ordered the defendant proceeding only days petitioner in other matters cerated. Petitioner’s conduct pattern retaliatory {Ander- son, Rueda), a matter (1) that the dealt with the merits of the facts note plus right a litigant’s in which was barred from in deference to acting to a judicial subordinate specifically addressed impartiality leads conclude that officer who office at us to petitioner’s pleasure, held his i.e., the note was “for writing corrupt purpose, [a] act con- faithful and thus judicial other than the duties” discharge purpose stituted wilful Judicial Qualifi- misconduct. v. Commission on (Spruance cations, 778, 796.) supra, Cal.3d
Authorizing Release Guns Confiscated
for Sale Defendants *26 The commission found: four 1979 and On occasions between April August ordered the Burbank Police to release Department revolver, to the purchaser a or had been rifle pistol, (gun) purchased an from owner after having been confiscated in connection with the owner’s case, (or, son).
criminal conviction in one conviction of the owner’s Peti did tioner not know the details of the for the sales and negotiations partic in the ipated to only guns transactions the orders the by signing releasing the Two of the purchaser. guns were Gordon purchased by peti Mangel, tioner’s courtroom bailiff and close friend. The other two sales personal were negotiated by one to a and the other a Bur Mangel, sheriff to deputy officer, bank police both of whose duties them to court brought room from to time the time. None of was a licensed firearms purchasers dealer. The court file in each case contains not the order of but release also the bill of sale.
Section 12028 is, conviction, provides that a firearm used in a crime upon a nuisance and shall be surrendered to or of the sheriff chief Sub- police. (c) division of that section whom provides that officers to the weapons “[t]he surrendered, are ., except certificate of a . or of upon judge . the district ., attorney . . that the retention thereof is or to the ends necessary proper of justice, may between the 1st and 10th of . . annually, July, . offer days . . weapons . to to have value with rec- respect sporting, [considered] reational, or collection for sale to at auction purposes, [federally licensed gun (d) Subdivision that if is not provides “weapon dealers].” of the can type that be sold or not sold is public, generally, pursuant (c),” subdivision (c) it “be destroyed.” (f) shall contain Subdivisions for the provisions return of stolen innocent owners. Section weapons 12030 provides a law enforcement of a firearm agency having custody use, subject destruction retain it for official but the must be may weapon destroyed when no longer needed.10
in question, within this code or or 12025 is a nuisance. or Section “(c) “(b) 10Following any felony, Any weapon described A firearm of vehicle i.e., any are is, felony, provided: prior upon provisions of any or an nature used in the carrier conviction January [1] of sections 12028 and attempt in (a) of subdivision any “The unlawful concealed 1981. to commit of the defendant, commission weapons (a), or, any 12030 misdemeanor as a nuisance. upon mentioned in Section of any as in effect conviction of carrying upon misdemeanor as provided during defendant, 653k, 12020, in this code provided person gun sales any or in or filed
Section 1417 “All exhibits which have been introduced provides: in this criminal action or be any proceeding may disposed provided kinds prop- Section 1419 that certain chapter provides [§§ 1417-1419].” be, crime, in the “filed as an exhibit shall erty, used including weapons court, under order the trial or sold or otherwise destroyed disposed to peti- the conditions order.”11 response such provided Apparently tioner’s claim sections the orders question, 1417 and authorized custody found that firearm was then in the commission sold “[e]ach county (b), or the weapon described in subdivision to the sheriff of a shall surrendered city police city county. municipal police department chief of or other head of a surrendered, judge upon the of a weapons except The officers to whom the certificate are record, thereof county, a court of or of the that the retention is district *27 necessary days the 10th may annually, or the ends between 1st and of proper justice, to of July, charge of consider to have year, weapons, in each offer the which the officers in them recreational, sporting, with at auction respect purposes, value to or collection sale involving any weapon pur- persons engage to under licensed federal law to in businesses If the thief or his any weapon chased. has been and is thereafter recovered from stolen transferee, pursuant to subdivision or is used in such a manner as to constitute a nuisance used, (b) (a) it or that it would be so shall prior knowledge without the of its lawful owner owner, as its use not be so offered for sale but be restored to the lawful as soon as shall served, proof ownership. upon weapon evidence has and of been his identification of the If, section, “(d) public, can to the weapon type under this a not of be sold is the shall, (c) 1st generally, pursuant weapon or between the and is not sold to subdivision the days as July, destroyed longer 10th of can no be used such succeeding, next be so that it weapon. “(e) Department any possession This not firearm of the of apply section shall to in the law, regulation any provision Fish and Game or which was in the violation of or used of thereunder, in and the Fish Game Code. (d) “(f) (c) or weapon destroyed No unless pursuant stolen shall be sold or subdivisions owner, reasonably identity can be given reasonable notice is to its lawful if and address his ascertained.” “Any law enforcement succeeding paragraphs provided: The second and of section 12030 any subject to agency custody any parts any of or firearms which are which has firearms of weapons, retain and by may, destroying in lieu such required chapter destruction as this of may or any may carrying agency, of out duties of use them as be useful in the official such laboratory turn over to of the of Justice or the criminalistics Department the criminalistics attorney’s any laboratory weap- of such police department, sheriff’s office or district office may carrying respective agencies. the official their ons as be useful in out duties of which, destroyed, “Any any being rather is used for official part firearm or firearm than weapon pursuant destroyed agency using be when purposes by to this section the such shall longer agency official by carrying it is no needed the for use out its duties. any pursuant firearm to this section “Any agency custody law that retains enforcement notify the of Justice pursuant Department to Section destroys or that a firearm 12028 shall description complete notification of a of such or destruction. This shall consist retention caliber, name, model, firearm, the manufacturer or brand including each the name of serial number.” any dangerous apply “The 1418 shall not provides: provisions 11Section Section 1419 any kind drugs, explosives, any or deadly poison property or or weapons, or narcotic law, prohibited by by which is a defendant in possession used character whatsoever convicted, armed of which he was or with which he was or crime the commission of the time of his person he had at the arrest. upon which his be, court, destroyed of the as an exhibit shall order trial or “Any such filed property ” provided the conditions in such disposed of under order. sold or otherwise filed Burbank Police were exhibits with Department none In each court.” case exhibits were not since the defendant necessary pleaded There is no merit to that the guilty. guns plausibly petitioner’s argument could regarded any which have introduced or filed in “exhibits been 1417) (§ criminal action or because court record proceeding” simply described, and, included in which the was some police gun report, cases, (1981) an order that Court gun (Harty be confiscated. v. Superior here the orders after Cal.App.3d Cal.Rptr. [177 477] [decided see fn. There is no indication that question; post].) guns left the of the possession the criminal police during proceeding. department
Petitioner testified that he firearm release orders the sort signed six to question times. The first time eight he approached private counsel who wanted gun released so that the defendant could his fee.12 pay Petitioner (also consulted a before deputy a witness the mas- city attorney ters), who advised that it was He petitioner authorize release. proper told he (1) based his seen having attorneys advice private obtain fees, (2) the release of their guns satisfy police departments court, “inherent power” in section 12028 provision for a certificate of a judge that “retention” of the “is gun necessary to the proper ends of justice,” from which he inferred that the power *28 authorize retention included a power authorize to private party. transfer
Commissioner who a half in year had served for and a Murphy, petition- court, er’s released, testified that he had although never ordered he guns believed that release was under at proper section 12028. He reasoned that least one of section 12028 is to purpose the out of the hands of get weapon someone who may be and that a irresponsible, purchase a officer by peace would Plotkin, accomplish Court who was purpose. Municipal Judge Association, active with petitioner in the Presiding testified that Judges his the opinion court had a of a discretion release to the gun assignee defendant, or to it defendant, return to the he or to order it but destroyed, recall, did not his the such during sections discretion. testimony, providing We no perceive arguable gun basis for the sale orders thinking petitioner’s were authorized by section It the nuisance re- 12028. declares a and gun . that the or quires sheriff sell it police (1) chief it either at holding public 12There no gun by is evidence that the transfer orders found the commission were moti vated any particular attorney of part implementing payment interest on the cases, defender, fees. In two the were represented the defendants the but no order for fees was made under section 987.8. In the the was other two cases defendant represented by private signed counsel. In one of those bill of his cases counsel the sale as father, agent, remaining client’s and in bill of signed by the case the sale was the defendant’s gun who owned the and identified as an himself “M.D.” dealer, a a or the district
auction to licensed unless federally gun judge 12030 authorizes or it. Section destroy authorizes its retention use it for official the of the custody gun law enforcement agency having Thus, needed for such use. duties and that it be when not destroyed requires are auction sale confiscated, is its gun dispositions the and permissible dealer, use, Petitioner’s to a licensed for official or destruction. retention First, they au- two flagrantly respects: orders violated these provisions use. the (Though thorized for private transfer to a gun private party officers, to their use or were no were attached purchasers peace strings the de- Second, of the the sales went to resale weapon.) proceeds even is confiscated fendants the statutes make clear that though gun nuisance, is the defendant’s longer a becomes no public property, sell. Court,
Petitioner contends that v. Harty Superior supra, Cal.App.3d debatable, orders was demonstrates of the transfer validity gun error, aby high- his thus correctable making legal them constituted court, er invalidated a Harty municipal rather than misconduct. judicial order defendant’s confiscated gun court’s for transfer a convicted court for that had arrested him to the marshal police department duties; among use in his it held that the marshal was not official un- weapon law enforcement officers entitled to confiscated possession der But even a that the marshal’s claim holding sections and 12030.13 orders authorizing was valid would far from Harty justify present to receive defendants had confiscated supposedly from whom been guns use or resale. proceeds of sale for unrestricted private made approval pri- Sections 12028 12030 would have identity vate sales of confiscated highly regardless guns improper *29 involvement of courtroom of the to the transactions. The relationship parties and close personal courtroom bailiff personnel, particularly petitioner’s friend, under obligations Gordon violated Mangel, additionally petitioner’s Conduct, 2(B) which specifies canon of the Code of Judicial California the ap- in which “a should avoid particular impropriety ways judge 2(B) (title 2). Canon of in all of canon his activities” pearance impropriety social, “A or other family, relationships states: should not allow his judge the pres- not lend to influence his conduct or He should judicial judgment. others; he of nor should of his office to advance the interests tige private are a special that they or the convey impression others to convey permit (fn. 11, ante), deadly referring “dangerous or 13Harty also held that 1419 section specific the the more ref weapons,” 12028 because latter makes superseded is section event, It no weapons. added: “In section has erences to firearms or concealed municipal not in the question was ‘filed as an exhibit’ application here because the firearm (124 748.) guilty]." pleaded Cal.App.3d p. at court the had defendant [where to influence . . of position By confiscated-gun him. a series approving to, friend, or negotiated sales his bailiff and was bound to by, convey impression obtaining bailiff had an “inside track” for Moreover, release. arm the guns’ the bailiff’s status as an of court gave him an over sell- necessarily gun enormous bargaining advantage ers, who were of recently sentenced defendants or the father such defend- (Two ant. of those defendants had been on sentenced third put probation; and the jail; served.) fourth sentenced time already The commission concluded sales was petitioner’s gun approval wilful misconduct. he Certainly knew or should have known that reasonably the sales themselves were under sections 12028 and 12030 and that illegal sales, bailiff, circumstances of the particularly participation created at least the appearance 2(B). under As already canon impropriety out, faith, pointed touchstone wilful is bad which misconduct requires a malicious or corrupt beyond mere actual or constructive knowl purpose lack edge power. on (Spruance v. Qualifications, Commission Judicial 778, 795-796; supra, Cal.3d Geiler Qualifi v. Commission on Judicial cations, 270, 10 Cal.3d supra, 283-284.) While acts approv ing gun sales constituted a grossly misuse of his negligent judicial pow er, arewe not persuaded clear and his evidence that motives convincing in committing those acts were malicious we corrupt. con Accordingly, clude that the acts amounted to conduct prejudicial.
Propriety
of Commission’s
Public Release
of its
Report
Filing
Supreme
When
Record With
Court
asserts,
Petitioner
concedes,
and the commission’s brief
tacitly
court,
record of
filing
commission
in this
the commission
proceedings
disseminated a
conclusions,
release and
press
its
copies
findings,
recommendation in this matter.
Petitioner contends that such dis
(1)
semination
constituted a
even
public admonishment
the commis
though
sion is authorized on its
(Const.,
own
admonishments
only private
issue
VI,
18,
(c);
art.
ante)
VI,
subd.
fn.
§
violated article
section
(f)
(“The
subdivision
of the Constitution
Council shall make rules
Judicial
. . .
which
construed
providing
confidentiality
proceedings”),
*30
Mosk v.
(1979)
494,
Superior Court
A similar contention was in Commission rejected Roberts v. on Judicial Performance, 739, 750, 33 Cal.3d supra, in reliance on rule primarily 902(a) of the Court, California Rules of which that provides subject certain commission exceptions, “shall be confidential until proceedings
60 is That rule in Court.”14 is filed the Commission by Supreme
record Council make the Judicial requirement consistent with constitutional 18, VI, (f).) Termination (art. rules subd. confidentiality” “providing § of the record filing after the of the constitutional ban on disclosure public Mosk, the court noted where in this court is demonstrated by analysis intended of California “the indication that people absence of article by revision confidentiality change requirement constitutional 499) provisions (25 VI in and examined the predecessor 1966” Cal.3d at p. 14, Cal.3d), 25of VI, (set 10b in fn. 490 p. of former article section out “except be confidential which shall commission provided proceedings . Court. . upon in the Supreme that . . . the record filed the commission by ” its confidential character. filing such loses therefore, should The whether disclosure is question presented, public in this court— record of the commission’s beyond restricted the point—filing VI, 18, (f) of the Constitution at which article section subdivision such disclo- nor prohibit require Judicial Council rules neither applicable sure. interests public Court has identified three United States Supreme matters: disciplinary confidentiality judicial
served
rules that
require
or retalia
(1)
recrimination
and witnesses
protecting complainants
against
tion,
of frivolous or unwarranted
(2)
from
protecting judges
publication
avoiding
(3)
premature
confidence
the courts
charges,
maintaining
(Landmark Com
misconduct.
judicial
disclosure of
claims of
groundless
8,1,
munications,
829,
L.Ed.2d
435 U.S.
Inc. v. Virginia
[56
Mosk,
on
in Roberts v. Commission
1535].)
98 S.Ct.
Justice
dissenting
751,
739,
still another
Performance,
urged
Judicial
Cal.3d
supra,
ad
whether to
this
to decide for itself
right
court’s
interest—protection
the commission
by preventing
minister
censure—would be
protected
censure,
with supporting
together
its recommendation
publicizing
in con
these interests
them with this court. Offsetting
findings, upon filing
of govern
discussion
is
fidentiality
policy
promoting knowledgeable
information in the absence
relevant
mental affairs
access
all
by providing
(See,
Newspaper
Globe
e.g.,
in confidentiality.
of some
interest
overriding
248, 256-
596,
L.Ed.2d
(1982) 457
Co. v.
Court
U.S.
Superior
[73
trial enhances
of a criminal
scrutiny
61 the judicial as a check upon and serve permits public participate process”].)
Of these four favoring factors one—maintenance confidentiality, confidence in the even courts—warrants a access postponement public the record of commission once is filed in this By it court. proceedings time all the evidence identity has been so that the of the witnesses gathered, and, of the probably, has been to the accused complainant, judge. disclosed Moreover, the commission then that the by has satisfied itself evidence before it warrants some form of it discipline, highly unlikely rendering this court will deem the or frivolous. charges wholly unwarranted Protection of the in the event of no judge’s reputation ultimate exoneration more ne cessitates after the confidentiality reach this court than does proceedings of the protection of a reputation or other whose license lawyer professional, to practice has been administratively confiden placed jeopardy, require tiality judicial review we proceedings. Finally, agree do not that publi cizing commission’s findings and recommendation of its upon filing record here is equivalent public censure this court and thus “restrict[s] available” to options (Roberts us v. Commission on Judicial Perform ance, supra, (dis. Cal.3d Mosk, J.)). If we decide that opn. public unwarranted, censure is we have ample opportunity provide ap propriate exoneration our explaining conclusion. remains, however,
There the question whether the commission’s publi- of its cizing findings and recommendation immediately filing upon record here unnecessarily jeopardizes public confidence in the integrity a sitting judge and thus in the judicial The does not arise process. question if the commission recommends the judge’s removal or In that retirement. event, the judge is immediately “disqualified acting as a judge” (Const., VI, art. (a)), subd. and there need to know § is public reason for that censure, But if disqualification. the recommendation is judge continues sit.
The fact that the commission’s to the court is couched not in terms report charges accusations but in the form of fact and conclusions findings of law seems to create an apt impression on the that the public findings are conclusions established fact—an that will not acceptance dispelled until the in this proceedings court culminate in the of an filing opinion. intermediate such as the steps, filing petition challenging findings and the presentation oral are to receive argument, likely considerably less attention public than the act—filing commission’s report record—that first brings matter to full-blown attention.
When the filed, commission’s and record are report has judge days within which to file a petition seeking rejection or modification this court *32 Court, 919(b).) rule (Cal. Rules of
of the commission’s recommendation. confidential until were to remain If the commission’s and record report and findings the recommendation of a and the contents of filing petition, there with of the simultaneously petition, release released the public final those accepting would far less of the appear probability public’s be would To that extent there that were in the petition. contested findings find- the contested willingness concerning more public suspend judgment of until the filing in this court and ings during pendency proceedings and unnecessary in the that was our Erosion confidence judge opinion. be us would far ultimately rejected by because based on findings improper likely. less doubts about minimizing interest in
We think that the public a warrants may that not judicial arising charges upheld process and of of the commission’s report of the release to public postponement this court by a for review the record of its until either proceedings petition The short has expired. has been filed or the time for such filing petition VI, section by mandated article additional period secrecy beyond (f) benefit. offsetting public is well worth the subdivision of the Constitution henceforth, case any we direct the clerk this court Accordingly, retire- not removal or which the commission recommended censure but has exhibits under a documents and ment of all filed and received judge, keep seal, files judge of the until either judge, and to conceal the identity rec- We further for review or the time for such has filing expired. petition (1) that the commis- that it rule by ommend to the Judicial Council provide in such case its or recommendation sion refrain from making proceedings other or pub- release a similar public during period press record make initial attention to the licity calling filing report end that the review, if to the to the any, reference appropriate petition are findings will that the commission’s recommendation perceive public action the judge. Finally, pending contested wholly partly recommendation, commission com- we urge Judicial Council on that We are aware voluntarily. with the substance of the recommendation ply Court, Constitution pre- statutes or the in the Rules nothing present vents it from so. doing
Conclusion recommen- we the commission’s must decide whether Finally, accept deter in this case will It that censure dation censure. is suggested view, 987.8 of section In our enforcement enforcement section 987.8. miscon- laudable. Petitioner’s to its terms not but according only proper is down laid guidelines failure clear duct arose out of his to observe primarily *33 by Legislature for the of fees the public assessment collection for defender’s con- legal services and for the of confiscated in disposition guns nection with crimes. His transcends error. All of the mere culpability legal misconduct established in the constituted at least conduct foregoing opinion committed some was with prejudicial; and some amounted gross negligence; to wilful misconduct. The commission’s of censure recommendation public is correct. clearly order,
Accordingly, by this Gubler publicly is censured. Judge KAUS, J. I agreewholeheartedly with the of court’s this case. disposition dissent, I respectfully however from that of the court’s portion opinion which seeks to regulate court, period, filing after of record in this during which commission censure shall proceedings recommending public remain confidential.
Justice Mosk’s criticism current Roberts procedures expressed was primarily based on they the fact that undermine availability of pri- vate admonishment as a realistic Once option. are made proceedings public, private deemed us admonishment—though adequate—be- I comes a farce. thought Justice Mosk was dead on that when I right point read his dissent Roberts and I still think so. The reason I did why not join him then VI, was (a) (f) threefold: Article section subdivision the Constitution Council, commission, directs the Judicial not or us make rules implementing (b) The basic Judicial Council rule confidentiality, 902(a), rule which, effect, the California Rules of Court provided that confidentiality (For ceased when the record was filed with us.
reason I thought Justice Mosk’s criticism of the commission’s release press was somewhat unfair: the set forth in rule exceptions confidentiality 902(b) relate clearly to releases before the of the record: once filing filed, the record is are proceedings document as simply other filed with court.) (c) rules, this Even if we were to I write the saw no practical way the lid” “keeping on commission short proceedings, maintaining confidentiality at least until we filed hold- Today’s our opinion. proves ing my point: must, as we of eventual assuming, possibility vindication—or private admonishment—it seems naive to believe that the filing a petition for review will remove the judge sting what may to be an prove unjust accusation or an harsh recommen- unjustifiably dation for public censure. In the event vindication complete private admonishment, nothing but will permanent confidentiality suffice.
I continue to believe that since the has rule- Constitution entrusted the making Council, there, to the power Judicial we it should let rest at least unless we can say that its rules do not simply provide confidentiality. 474, 488-499 Mosk v. Court 25 Cal.3d
(E.g., Superior [159 do 1030].) not I not believe 601 P.2d This does mean that Cal.Rptr. however, not, I do believe that rules cannot be improved upon. present enough this an it far to accom- go decision is since does not improvement, its plish purpose.