Kennick v. Commission On Judicial Performance

Decision Date08 March 1990
Docket NumberNo. S003813,S003813
Citation267 Cal.Rptr. 293,787 P.2d 591,50 Cal.3d 297
CourtCalifornia Supreme Court
Parties, 787 P.2d 591, 87 A.L.R.4th 679 David M. KENNICK, a Judge of the Municipal Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

Maureen J. Shanahan, Totaro, Engels & Shanahan, Pacific Palisades, Gilbert L. Flanders, Downey, for petitioner.

Susan Martynec, Office of the Attorney General, Los Angeles, for respondent.

THE COURT: *

The Commission on Judicial Performance (commission) has filed in this court its recommendation that David M. Kennick, a judge of the Municipal Court for the Los Angeles Judicial District, be removed from office. (See Cal.Rules of Court, rule 919(a). 1 ) Accompanying the petition were the commission's findings of fact and conclusions that the judge had committed "wilful misconduct in office" (willful misconduct) and "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" (prejudicial conduct), and was culpable of "persistent failure or inability to perform the judge's duties" (persistent failure) (Cal. Const., art. VI, § 18, subd. (c)).

In response, the judge (petitioner) filed a petition to modify or reject the recommendation. (See rule 919(b).) Thereafter, he retired from office (Gov.Code, § 75033.5). He then sought to withdraw his petition and requested dismissal of this proceeding as moot. We denied the request by a minute order dated February 23, 1989, in which we explained that to implement the constitutional provisions that make a removed judge ineligible for judicial office and suspend him or her from practicing law in California pending further order of this court (Cal. Const., art. VI, § 18, subd. (d)), it is necessary to determine whether removal of petitioner from office would have been warranted had he not retired and, if so, whether he should be permitted to practice law.

After the filing of that order, petitioner informed us by letter of his willingness, as a basis for dismissal, to agree to his ineligibility for future judicial office and suspension from the practice of law. 2 He now contends that this willingness creates an additional basis for dismissal based on mootness. He further contends his fitness to practice law should be determined in proceedings before the State Bar.

As will be explained, we have concluded that this proceeding is not moot and that we should proceed to a determination of the merits of the commission's report and recommendation of removal. We have further concluded, after independently reviewing the record, that petitioner should be censured for willful misconduct and prejudicial conduct and ordered removed from office on the sole ground of persistent failure or inability to perform his judicial duties, but that he should be permitted to practice law if he passes the Professional Responsibility Examination.

Petitioner was a judge of the Municipal Court, Los Angeles Judicial District, from June 1972 until his retirement in July 1988. Pursuant to a preliminary investigation (rule 904), the commission served him on December 10, 1986, with a notice of formal proceedings (rule 905) and on March 13, 1987, with an amended notice (rule 911), alleging facts charged to constitute willful misconduct, prejudicial conduct, and persistent failure. He filed an answer (rule 906), and in May 1987 three special masters held 10 days of evidentiary hearings on the issues thereby presented (rules 907-910). The masters' report to the commission (rule 912) found most, but not all, of the alleged facts to be true and concluded that each true fact, or set of facts, sustained a charge of willful misconduct, prejudicial conduct, or persistent failure.

The commission's report, filed with this court in January 1988, confirmed virtually all the masters' findings and found additional facts that the masters had concluded The commission's findings, which are in eight counts, deal with five factual situations, beginning with the arrest and conviction of petitioner for drunk driving in August 1985. It is found that he was rude and abusive toward the arresting officers and refused to take field sobriety or blood-alcohol tests (count two), that he sought preferential treatment because of his judicial status and asked an officer if "the paperwork could get lost" before it reached the court (count one), and that he was convicted of driving under the influence of alcohol on a plea of nolo contendere (count three). A second group of findings specifies numerous instances of demeaning, rude, impatient, or abusive behavior, and denial of litigants' and attorneys' rights to be heard, both on the bench and in chambers (counts four and six). Next are findings that petitioner favored certain attorneys in appointing counsel for indigent defendants (count five). In another count it is found that in a long conversation with a waitress at a restaurant, petitioner implied she should not worry about a drunk driving arrest (count seven). Finally, it is found that petitioner's excessive absences from the courthouse, and his cessation of work altogether at the beginning of 1987, constituted persistent failure or inability to perform judicial duties (count eight).

were not proved. The commission also differed from the masters in its assessment of particular acts as willful misconduct or prejudicial misconduct. The commission's findings of fact and conclusions of law were unanimous. The recommendation of removal was by a vote of eight to one.

EFFECT OF PETITIONER'S RETIREMENT

Petitioner contends his retirement has made this proceeding moot because we no longer can grant the relief sought by the commission, i.e., his removal from office. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 41 Cal.Rptr. 468, 396 P.2d 924 [proceeding to enforce marketing regulation rendered moot by defendant's bankruptcy and cessation of business].) Article VI, section 18, subdivision (d), of the California Constitution, however, provides: "A judge removed by the Supreme Court is ineligible for judicial office and pending further order of the court is suspended from practicing law in this State." Thus, the filing in this court of the commission's recommendation of removal placed in issue (1) whether petitioner should continue in the judicial office which he then held, (2) whether he should be eligible for any judicial office, and (3) whether he should be suspended from the practice of law in California until further order of this court.

The statute under which petitioner retired provides that "[a]n election to retire" thereunder "shall be without right of revocation, and upon such filing [of the election] said judge shall be deemed retired with receipt of benefits deferred until herein provided, and the judicial office from which he or she has retired shall become vacant." (Gov.Code, § 75033.5.) Petitioner's election to retire therefore eliminated any possibility of his continuing in the judicial office he was holding at the time of the commission's recommendation. His retirement did not, however, foreclose his future eligibility to serve as a judge (see Cal. Const., art. VI, § 15 & 5th par. of § 6), and that eligibility remained for determination in this proceeding.

Further, petitioner's retirement did not resolve the question whether he should be suspended from the practice of law pending further order of this court. Petitioner contends that the suspension issue is not properly before us and instead should be a matter for the State Bar. He claims that suspending him from law practice in this proceeding would violate his constitutional rights to due process and equal protection of the laws. Due process would be violated, he argues, because (1) he was not notified as to which of the charges underlying the removal recommendation would be a basis for suspension from practice or informed of the potential term of suspension, and (2) there has been no hearing on how these charges relate to his right to law practice.

No such notice was required. Rejecting a similar due process claim under a statute Petitioner claims that suspension from law practice would deprive him of equal protection of the laws because, he argues, there is no rational basis for subjecting an attorney who happens to be a removed judge to disciplinary sanctions not applicable to other attorneys. To the contrary, California law makes a reasonable distinction between suspension from law practice based on the attorney's conduct while a judge and suspension or disbarment that is based on other conduct and ordinarily arises out of proceedings before the State Bar. Investigation of judges' conduct for purposes of judicial discipline is entrusted to the commission, and if this court accepts the commission's recommendation of removal, the question of suspension is determined by this court from the record of proceedings before the commission, without the necessity for further factual investigation.

                authorizing automatic suspension or disbarment of an attorney convicted of a crime involving moral turpitude, this court held that notice of the criminal proceedings was constitutionally sufficient.  "The law informs [the accused attorney] that one of the results of his conviction will be his subsequent disbarment....  This answers the constitutional requirement that he shall have due process of law before he can be [787 P.2d 595] deprived of his right to practice."  (In re Collins (1922) 188 Cal. 701, 708, 206 P. 990;  accord In re Rothrock (1944) 25 Cal.2d 588, 592, 154 P.2d 392.)   So here, petitioner received the commission's notice of formal proceedings expressly charging him with conduct constituting grounds for removal from office (Cal.  Const., art.  VI, § 18, subd.  (c)) and had notice from the Constitution itself that a removed judge would be automatically suspended from law practice unless and until this court ordered otherwise (id., art.  VI, § 18, subd.  (d)).
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