Fitch v. Commission on Judicial Performance, S041217
| Decision Date | 09 February 1995 |
| Docket Number | No. S041217,S041217 |
| Citation | 9 Cal.4th 552,887 P.2d 937,37 Cal.Rptr.2d 581 |
| Court | California Supreme Court |
| Parties | , 887 P.2d 937 John FITCH, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent. |
John Fitch, in pro. per.
William A. Smith, Fresno, for petitioner.
Daniel E. Lungren, Atty. Gen., Karen Ziskind and Raymond L. Brosterhous, Deputy Attys. Gen., for respondent.
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Judge John Fitch of the Fresno County Superior Court, acting in propria persona, has petitioned for review of a unanimous recommendation by the Commission on Judicial Performance (Commission) that he be publicly censured for conduct which the Commission has found to constitute "conduct prejudicial to the administration of justice that brings the judicial office into disrepute." (See Cal. Const., art. VI, § 18, subd. (c) [hereafter section 18(c) ]; Cal.Rules of Court, rule 919(b).)
The bases for the Commission's censure recommendation are that, between 1988 and 1992, petitioner engaged in a pattern of misconduct involving (1) inappropriate and offensive comments concerning the physical attributes and clothing of female members of the court staff; (2) inappropriate and offensive remarks concerning the intimate relationships of court attaches or attorneys with their spouses; and (3) other inappropriate and offensive remarks in the presence of court staff. In addition, the Commission found that (4) petitioner singled out women working under his supervision for inappropriate and nonconsensual touching, or attempted touching, although such conduct was "unusual and episodic," occurred over a lengthy period, was relatively infrequent, and did not constitute a pattern of misconduct.
The Commission's report itemizes 18 separate acts of misconduct, involving 9 complaining witnesses. It further found, however that since 1992 petitioner appears to have ceased this misconduct, that he is a skilled, able, and hardworking judge whose courtroom conduct is beyond reproach, that he has contributed extensively to the legal community, and that he has donated substantial time and effort to the local community as well. Nonetheless, as indicated, the Commission concluded that petitioner's prior conduct constituted "conduct prejudicial to the administration of justice that brings the judicial office into disrepute," for which he should be publicly censured. As will appear, we agree with the Commission's findings and conclusions.
Section 18(c) provides in pertinent part that, "On recommendation of the Commission on Judicial Performance the Supreme Court may ... censure or remove a judge for action occurring not more than 6 years prior to the commencement of the judge's current term that constitutes willful misconduct in office, persistent failure or inability to perform the judge's duties, habitual intemperance in the use of intoxicants or drugs, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute...."
In this review proceeding, we make an independent evaluation of the evidence before the Commission to determine whether the charges against petitioner are supported by clear and convincing evidence. Thereafter, we must determine whether the conduct that is the subject of the proceeding constitutes a basis for censure or removal, and, if so, the appropriate action. (See Mardikian v. Commission on Judicial Performance (1985) 40 Cal.3d 473, 476-477, 220 Cal.Rptr. 833, 709 P.2d 852; Gubler v. Commission on Judicial Performance (1984) 37 Cal.3d 27, 35, 207 Cal.Rptr. 171, 688 P.2d 551; Wenger v. Commission on Judicial Performance (1981) 29 Cal.3d 615, 622, 175 Cal.Rptr. 420, 630 P.2d 954; Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 784, 119 Cal.Rptr. 841, 532 P.2d 1209, fn. 5; Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 275-276, 110 Cal.Rptr. 201, 515 P.2d 1.)
As we recently observed, " (Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297, 314, 267 Cal.Rptr. 293, 787 P.2d 591.)
Petitioner acknowledges that his conduct has damaged public esteem for the judiciary, for his petition for review recites that he "deeply regrets the dishonor brought to the bench by this matter." Petitioner nonetheless contests the Commission's findings. Although he readily admits that his conduct "warrants appropriate discipline," he contends that "censure should not be imposed for acts he did not do...."
Rather than file a brief specifically addressing the Commission's findings and conclusions, petitioner has simply incorporated his earlier objections to the similar (but not identical) findings of the special masters appointed by this court pursuant to California Rules of Court, rule 907. As a result, many of petitioner's objections are not pertinent to the Commission's actual findings, and will not be discussed here. For example, although the petition complains of material in a footnote to the special masters' report, the Commission's own "Findings and Conclusions" expressly recite that the Commission did not consider the foregoing material in reaching its conclusions and recommended censure.
As will appear, rather than assert errors of law or other irregularities in the proceedings below, petitioner's objections are directed almost exclusively to the credibility of the various witnesses against him, and accordingly raise matters difficult to reevaluate on the basis of a cold record. As we have often stated, although we must make an independent evaluation of the record, we nonetheless give special weight to the masters' findings that reflect their evaluation of the credibility of the witnesses who testified before them. (Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at pp. 314-315, 267 Cal.Rptr. 293, 787 P.2d 591; Gubler v. Commission on Judicial Performance, supra, 37 Cal.3d at p. 34, 207 Cal.Rptr. 171, 688 P.2d 551, and cases cited.)
The Commission adopted, with only minor modifications, the report of the special masters appointed by this court. Because this case involves public censure rather than outright removal of a judge, we need not explore in detail the extensive factual matrix underlying each of the Commission's findings. Instead, we only summarize the gist of petitioner's misconduct in the four areas specified by the Commission.
The Commission found that, on several occasions, petitioner made offensive remarks to female court reporters or clerks concerning their buttocks, breasts, or legs. (E.g., petitioner told a court reporter, "Your butt looks good in that dress.")
The Commission found that, on several occasions, petitioner made offensive remarks to female court attaches or attorneys regarding their intimate...
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