McCartney v. Commission On Judicial Qualifications

• Decision Date: 19 September 1974
• Citation: 526 P.2d 268,116 Cal.Rptr. 260,12 Cal.3d 512
• Court: California Supreme Court
• Parties: , 526 P.2d 268 James J. McCARTNEY, a Judge of the municipal court, Petitioner, v. COMMISSION ON JUDICIAL QUALIFICATIONS, Respondent. L.A. 30217. In Bank

Page 260

116 Cal.Rptr. 260

12 Cal.3d 512, 526 P.2d 268

James J. McCARTNEY, a Judge of the municipal court, Petitioner, v. COMMISSION ON JUDICIAL QUALIFICATIONS, Respondent.

L.A. 30217.

Supreme Court of California,

In Bank.

Sept. 19, 1974.

Kayashima & Tessier and Ben T. Kayashima, Pomona, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Robert F. Katz, Deputy Attys. Gen., for respondent.

BY THE COURT.

We issued a writ of review in response to the petition of Judge James J. McCartney, filed pursuant to rule 920 of the California Rules of Court, ¹ that we modify or reject the recommendation of the Commission on Judicial Qualifications (hereinafter the Commission) that he be removed from office. ² Judge McCartney contends that the Commission has denied him procedural due process, that the charges of misconduct against him have not been sufficiently proven, and that any proven misconduct should be mitigated by his inexperience in office or as a justifiable response to an unprofessional effort by the local public defender to prevent him from hearing criminal cases. For the reasons stated below we conclude that the Commission's recommendation that Judge McCartney be removed from office be rejected but we further conclude that he be censured.

Following service as a deputy district attorney petitioner was elected a Judge of the Municipal Court for the San Bernardino Judicial District (Central Division) of San Bernardino County. He began his six-year term of office on January 4, 1971. As early as late March of that year the Commission began to receive letters from private citizens and attorneys alleging that petitioner had engaged in certain unbecoming conduct during a welfare fraud case. After consideration and examination of these complaints by informal letters of inquiry and a formal preliminary investigation (rule 904), the Commission charged petitioner with seven general counts (consisting of numerous subcounts) of wilful misconduct in office (hereinafter wilful misconduct) and conduct prejudicial to the administration of justice that brings the judicial office into disrepute (hereinafter prejudicial conduct). In accordance with the usual procedure (rules 905, 906, and 907) the Commission served its accusatory Notice of Formal Proceedings (hereinafter notice) containing these charges, petitioner filed a verified answer thereto, and this court appointed three special masters to take the extensive evidence in this matter. ³ After lengthy confidential hearings upon the original charges and some new allegations added after the proceedings had commenced, the special masters issued their report summarizing the evidence for the Commission. The masters found that petitioner had in five specific instances engaged in prejudicial misconduct, but had not committed any acts of wilful misconduct. Based on that finding, the master's report recommended censure.

Upon consideration of the master's report, written objections thereto by both petitioner and the examiner, and oral arguments, the Commission thereafter filed with this court its own unanimous findings of fact and conclusions of law. Impliedly rejecting the contrary view of the masters, the Commission found that petitioner had engaged in Both acts of wilful misconduct and prejudicial conduct. While the Commission dismissed 15 of the various subcounts against petitioner, it concluded that each of the general counts in the notice had been fully are partially sustained by the evidence. Consequently, the Commission recommended to this court that petitioner be removed from office. ⁴ (Cal.Const., art. VI, § 18.) Pursuant to the provisions of the California Constitution, petitioner was thereby automatically disqualified from acting as a judge for as long as the Commission's removal recommendation remained pending before this court. (Cal.Const., art. VI, § 18, subd. (a).)

Disputing the Commission's recommendation, petitioner filed his petition for the instant review. Beyond challenging the Commission's removal recommendation on its merits, however, Judge McCartney also renews before this court certain objections which he repeatedly raised to the Commission's jurisdiction and procedures. Contending broadly that the entire proceedings leading up to the Commission's recommendation were violative of his constitutional rights, petitioner specifically asserts that the Commission denied him due process of law in (1) failing to accord proper notice of its preliminary investigation under rule 904(b), by (2) permitting amendment to the charges after the commencement of evidentiary hearings, in (3) denying his demands for public hearing, change of venue, and discovery by deposition, in (4) failing to accord him the right to disqualify Commission members, and (5) by neglecting to indicate what evidentiary standard it applied in reviewing the master's report.

In our view, these assertions that procedural defects in the Commission's proceedings amount to a denial of due process are without merit. The Commission's failure, for instance, to accord Judge McCartney notice of the preliminary investigation into the various incidents at issue other than the welfare fraud case, as prescribed in rule 904(b), entailed no fundamental unfairness. In affording a judge 'reasonable opportunity in the course of the preliminary investigation to present such matters as he may choose,' rule 904(b) clearly affords to the judge more procedural protection than is constitutionally required. At the stage of the proceedings to which rule 904(b) applies, the Commission clearly has not yet commenced to perform any adjudicatory function, but is merely attempting to examine citizen complaints in a purely investigatory manner. ⁵ Accordingly, notice to the judge under investigation as to the nature of the complaints against him is not compelled as a matter of due process. (See Hannah v. Larche (1960) 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307.) Hence, relief from the deleterious effect, if any, of the Commission's failure to follow rule 904(b) may be secured by petitioner only upon a showing of actual prejudice. (Cf. Light v. State Bar (1939) 14 Cal.2d 328, 331--332, 94 P.2d 35, wherein the State Bar failed to accord notice as provided by statute; McPheeters v. Board of Medical Examiners (1947) 82 Cal.App.2d 709, 187 P.2d 116, wherein the board failed to provide notice of a continuance of hearings.) No such prejudice appears here. The record is clear that service of the notice detailing all seven general counts of misconduct against him, over three months before the evidentiary hearings gave petitioner adequate notice of charges and reasonable time to prepare his defense.

Petitioner's related assertion that the Commission's periodic exposure to reports of the investigation, unchallenged by explanations he would have submitted had it complied completely with rule 904(b), had a shattering impact upon its impartiality is without any evidentiary foundation. Hence, the admitted procedural irregularity ⁶ in the Commission's notice of the investigation cannot of itself impair the validity of its subsequent recommendation of removal. (Accord, In re Robson (Alaska 1972) 500 P.2d 657.)

Nor does there appear to be any substantial merit in the assertions that petitioner was denied due process when the Commission, pursuant to its own special rule, limited discovery to items other than depositions. In requesting the opportunity to take depositions of witnesses (or, in the alternative, to serve written interrogatories) in addition to the discovery permitted by the Commission, petitioner sought the discovery expressly authorized by statute (Gov.Code, § 68753 empowering the Commission to order depositions '(in) any pending investigation or formal proceeding'). As matters of discovery are generally within the sound discretion of the initial trier of fact, however, we consider that the determination as to whether a discovery order shall issue is within the sound discretion of the Commission.

We cannot say that there has been such an abuse of that discretion here that petitioner was deprived of due process. Without deciding which discovery standard--the civil practice rule requiring a showing of relevance and materiality (Code Civ.Proc., § 2036) or the slightly more liberal criminal law requirement that the information sought be demonstrated necessary for a fair trial (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536, 113 Cal.Rptr. 897, 522 P.2d 305)--should apply to the Commission's proceedings, we believe that it was incumbent upon petitioner to make some minimal showing of good cause for the depositions. (See Shively v. Stewart (1966) 65 Cal.2d 475, 481--482, 55 Cal.Rptr. 217, 421 P.2d 65; Brotsky v. State Bar (1962) 57 Cal.2d 287, 303--304, 19 Cal.Rptr. 153, 368 P.2d 697.) Petitioner made no showing of good cause whatsoever, entirely failing to support his demand with appropriate affidavits and making the demand itself so general that the particular witnesses to be deposed were not even specified. By reason of such lack of clarity in his demand, petitioner has no cause for complaint that the request was refused.

Equally unfounded is petitioner's complaint that he should have been accorded an open hearing. This state has adopted a constitutional policy that proceedings before the Commission shall be confidential (Cal.Const., art. VI, § 18, subd. (e), authorizing the Judicial Council to 'make rules . . . providing for confidentiality of proceedings.') While such a policy undoubtedly was adopted in part to protect the particular judge charged with misconduct and might, therefore, arguably be waived by him, we recognize that the provision for confidentiality also protects witnesses and citizen complainants from intimidation. Inasmuch as confidentiality is constitutionally authorized, is based on sound reason, and is...