Adams v. Commission on Judicial Performance

• Decision Date: 20 July 1995
• Docket Number: No. S042149,S042149
• Citation: 10 Cal.4th 866,42 Cal.Rptr.2d 606,897 P.2d 544
• Parties: , 897 P.2d 544, 95 Cal. Daily Op. Serv. 5688, 95 Daily Journal D.A.R. 9655 G. Dennis ADAMS, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.
• Court: California Supreme Court

Page 606

42 Cal.Rptr.2d 606

10 Cal.4th 866, 897 P.2d 544, 95 Cal. Daily Op. Serv. 5688,

95 Daily Journal D.A.R. 9655

G. Dennis ADAMS, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

No. S042149.

Supreme Court of California In Bank.

July 20, 1995.

Rehearing Denied Sept. 14, 1995.

Douglas Reynolds, Lewis, D'Amato, Brisbois & Bisgaard, San Diego, CA, for petitioner.

James D. Dutton, Office of the Atty. Gen., San Diego, CA, for respondent.

BY 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 Cal.Rules of Court, rule 919(a).) ¹ In support of its recommendation, the Commission submitted findings of fact and conclusions of law determining that petitioner had committed a variety of actions that constituted wilful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and improper action. (Cal. Const., art. VI, § 18, former subd. (c).) ² In response, petitioner filed a petition to modify or reject the recommendation (see rule 919(b)) or, in the alternative, for remand for a new hearing before the Commission, on the ground that petitioner was denied due process of law at his hearing.

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 re-elected to the superior court for successive terms in 1980, 1986, and 1992.

On December 10, 1992, following an extensive preliminary investigation (rule 904.2), the Commission filed a notice of formal proceedings against petitioner, alleging (in four counts) facts charged as constituting both wilful misconduct and prejudicial conduct. Petitioner filed an answer denying the charges. Thereafter, the Commission filed a first amended and second amended notice, ³ and petitioner answered, again denying the charges. ⁴

In October and November 1993, three special masters ⁵ appointed by this court held a seventeen-day evidentiary hearing on the issues presented (rules 907-908). The examiners (in this case, deputies of the Office of the Attorney General) ⁶ prosecuted the charges against petitioner, who was represented by private counsel. Following the conclusion of the hearing, the special masters transmitted to the Commission their proposed report, together with findings of fact and conclusions of law. As to count 1, the masters concluded that the allegations of petitioner's receipt of special benefits had not been established, but that the alleged facts that were found to be true sustained most (but not all) of the charges of separate instances of prejudicial conduct; as to counts 2 and 3, the masters found that certain of the alleged facts had not been established, and the alleged facts that were found to be true did not sustain the charges of either wilful misconduct or prejudicial conduct; and as to count 4, the masters found the alleged facts that were found to be true demonstrated "negligent" prejudicial conduct, ⁷ but not wilful misconduct. The special masters concluded in their report that petitioner was not guilty of wilful misconduct and that in no instance had he acted in bad faith, but that he was guilty of prejudicial conduct.

The examiners filed a lengthy statement of objections to the report of the special masters, disputing in particular the conclusion that certain facts had not been proved and that other facts did not amount to wilful misconduct or prejudicial conduct. The report of the Commission, filed with this court in September 1994, confirmed the special masters' findings with respect to the alleged facts found by the special masters to be true, and found true additional allegations that the masters had concluded had not been proved. The Commission differed significantly from the masters in assessing particular acts as wilful misconduct or prejudicial conduct, concluding that the facts found to be true sustained charges of four separate instances of wilful misconduct and thirteen separate instances of prejudicial conduct, as well as several instances of improper action. By a vote of six to two, the Commission recommended that petitioner be removed from office.

II

In Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297, 267 Cal.Rptr. 293, 787 P.2d 591, 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 have (1) committed acts he or she knew or should have known to be beyond his or her power, (2) for a purpose other than faithful discharge of judicial duties. (Kennick, supra, 50 Cal.3d at pp. 313-314, 267 Cal.Rptr. 293, 787 P.2d 591; Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 832, 264 Cal.Rptr. 100, 782 P.2d 239.)

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, 267 Cal.Rptr. 293, 787 P.2d 591.) 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, 264 Cal.Rptr. 100, 782 P.2d 239; 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, 34 Cal.Rptr.2d 641, 882 P.2d 358.) "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, 34 Cal.Rptr.2d 641, 882 P.2d 358.)

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 effect, prior to adoption of the 1992 version of that code, and thus our assessment of petitioner's conduct is governed by the earlier version of the code. We therefore shall review those pertinent canons as they appeared in the 1975 version. (The pertinent text of the prior version of the canons was adopted in substance in the 1992 version of the code, except where otherwise noted. All references to canons refer to the canons of the Code of Judicial Conduct.) ⁹

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 2 B 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 5 C(1) provided that judges "should refrain from financial and business dealings that tend to reflect adversely on their impartiality,...