McComb v. Commission On Judicial Performance

• Decision Date: 02 May 1977
• Court: California Supreme Court
• Parties: 19 Cal.3d Spec.Trib.Supp. 1, 564 P.2d 1 Marshall F. McCOMB, an Associate Justice of the Supreme Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent. SF 23585.

Page 459

138 Cal.Rptr. 459

19 Cal.3d Spec.Trib.Supp. 1, 564 P.2d 1

Marshall F. McCOMB, an Associate Justice of the Supreme Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

SF 23585.

Supreme Court of California, In Bank.

May 2, 1977.

[19 Cal.3d Spec.Trib.Supp. [PG5] Eugene J. Majeski, Ropers, Majeski, Kohn, Bentley & Wagner, Redwood City, Gregory S. Stout and Wallace P. Douglass, San Francisco, for petitioner.

W. O. Weissich, Randolph E. Heubach and Weissich & Heubach, San Rafael, for respondent.

Henry W. Howard, A. James Robertson II, Jerome B. Falk, Jr., Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco, Thomas F. Overlander and Caplan & Overlander, Los Angeles, for conservator of the person and estate of petitioner.

[19 Cal.3d Spec.Trib.Supp. [PG6] THE TRIBUNAL: ^*

The Commission on Judicial Performance (hereafter the Commission) has recommended the retirement or removal of Associate Justice Marshall F. McComb from the California Supreme Court (see Cal.Const., art. VI, §§ 8 and 18; Cal.Rules of Court, rules 901--922). The Commission's recommendation that the 82-year-old justice be Retired is based on its findings and conclusions that he is suffering from a disability that seriously interferes with the performance of his judicial duties and that the disability is, or is likely to become, permanent (Cal.Const., art. VI, § 18, subd. (c)(1)). The Commission's recommendation that Justice McComb re Removed is based on its findings and conclusions that he has wilfully and persistently failed to perform his judicial duties, and has engaged in conduct prejudicial to the administration of justice and conduct which brings the judicial office into disrepute (Cal.Const., art. VI, § 18, subd. (c)(2), before amend. eff. Nov. 2, 1976). ¹

[19 Cal.3d Spec.Trib.Supp. [PG7] Having undertaken an independent evaluation of the evidence, we concur in the Commission's finding that Justice McComb is suffering from a disability (chronic brain syndrome, senile dementia) that seriously interferes with the performance of his judicial duties and that the disability is, or is likely to become, permanent. We conclude also that the Commission's findings of wilful and persistent failure to perform judicial duties are not supported by the record and that no cause for discipline exists through conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Accordingly, we order the retirement of Associate Justice Marshall F. McComb from the Supreme Court of the State of California.

Justice McComb petitioned the Supreme Court for a writ of review, which was granted, and he has petitioned that court to reject or modify the Commission's recommendations (Cal.Rules of Court, rule 919(b)). Pursuant to article VI, section 18, subdivision (e) of the state Constitution, as amended on November 2, 1976, seven California Court of Appeal justices were selected by lot to constitute a tribunal ot review the Commission's recommendations and to determine the matter. ² Petitioner has filed an objection to this tribunal's authority to make such determination, contending that section 18, subdivision (e) and the court [19 Cal.3d Spec.Trib.Supp. [PG8] rule implementing that section (rule 921), as to him, violate the federal and state prohibitions against ex post facot laws (U.S.Const., art. I, § 9, cl. 3, and § 10; Cal.Const., art. I, § 9). The objection, however, is without merit because section 18, subdivision (e) is merely a procedural change, as distinguished from a change of substantive law which adversely affects petitioner's rights and thus it is not an ex post facto law as applied to petitioner (see, generally, Beazell v. Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216; Duncan v. Missouri, (1894) 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485; cf. Keiser v. Bell (E.D.Pa.1971) 332 F.Supp. 608, 620--624).

Petitioner has maintained throughout this proceeding that impeachment is the only constitutional way he, as a duly elected justice, ³ may be removed from the court. Although judges of state courts are subject to impeachment for misconduct in office (Cal.Const., art. IV, § 18, subd. (b); Gov.Code, § 3020), impeachment is not the only procedure for removing a judge from a court. By adoption of article VI, sections 8 and 18 of the state Constitution, the people of this state have expressly empowered the Supreme Court, on recommendation by the Commission, to suspend, retire, censure, or remove a judge for the reasons stated in section 18 (see fn. 1, ante). This procedure is a constitutional alternative to the impeachment process (see Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 282, 110 Cal.Rptr. 201, 515 P.2d 1, cert. den. 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235; cf. In re Kelly (Fla.1970) 238 So.2d 565, 568--569, cert. den. 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246; Cusack v. Howlett (1969) 44 Ill.2d 233, 254 N.E.2d 506; In re Terry (Ind.1975) 323 N.E.2d 192, rehg. den. 329 N.E.2d 38, cert. den. 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 97; In re Inquiry Relating to Rome (1975) 218 Kan. 198, 542 P.2d 676; In re Haggerty (1970) 257 La. 1, 241 So.2d 469; In re Dierner and Broccolino (1973) 268 Md. 659, 304 A.2d 587, cert. den. 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885).

Petitioner attacks the validity of this proceeding on broad constitutional grounds involving the alleged denial of due process and equal protection of the laws. His basic premise is that this proceeding is a 'criminal prosecution' in which he is entitled to the same constitutional rights, privileges and immunities afforded defendants in criminal cases, particularly the right to trial by jury, the right to be presumed innocent [19 Cal.3d Spec.Trib.Supp. [PG9] until proven guilty beyond a reasonable doubt, the right to be judged by judges who are lawyers, and protection from ex post facto laws and bills of attainder.

In contending that this proceeding is a criminal prosecution, petitioner relies on Penal Code section 15, which was enacted in 1872, and defines a crime or public offense as 'an act committed or omitted In violation of a law forbidding or commanding it, and to which is annexed, Upon conviction, either of the following punishments: '1. Death; ( ) 2. Imprisonment; ( ) 3. Fine; ( ) 4. Removal from office; or, ( ) 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State.' (Italics added.) Citing this statute and cases that involved the removal of public officers from office pursuant to former Penal Code sections 758--771 (now Gov. Code, §§ 3060--3073), ⁴ petitioner argues that since the Commission has recommended his removal from the court, he is being punished for an unlawful act, and therefore this proceeding is a criminal prosecution.

A criminal action is a proceeding in which a person charged with a public offense is accused and brought to trial and punishment (Pen.Code, § 683). In the instant proceeding, petitioner is not charged with unlawful acts which constitute criminal offenses. Nor is the proceeding designed to convict petitioner of a crime or to punish him for criminal acts. Rather, this proceeding is limited to an inquiry and determination whether petitioner is physically and mentally capable of performing his judicial duties, or whether he has wilfully and persistently failed to perform those duties, or whether he has engaged in conduct prejudicial to the court and the administration of justice. These grounds for retirement or removal of a judge do not require proof of criminal misconduct. The ultimate objective is to protect the judicial system and the public which it serves from judges who are unfit to hold office. Accordingly, we hold that a proceeding to retire, censure, or remove a judge pursuant to article VI sections 8 and 18 of the state Constitution, is not a criminal prosecution in which the ordinary criminal procedural safeguards apply (cf. In re Kelly, supra, 238 So.2d 565, 569; In re Inquiry Relating to Rome, supra, 218 Kan. 198, 542 P.2d 676; In re Haggerty, supra, 257 La. 1, 241 So.2d 469; In re Diener and Broccolino, supra, 268 Md. 659, 304 A.2d 587; In the Matter of [19 Cal.3d Spec.Trib.Supp. [PG1] Mikesell (1976) 396 Mich. 517, 243 N.W.2d 86, 90--91; In re Crutchfield (1975) 289 N.C. 597, 223 S.E.2d 822, 825; Sharpe v. State ex rel. Oklahoma Bar Association (Ct. on the Judiciary of Okl.1968) 448 P.2d 301, cert. den. 394 U.S. 904, 89 S.Ct. 1011, 22 L.Ed.2d 216; Keiser v. Bell, supra, 332 F.Supp. 608, 616--617). ⁵

Petitioner contends he was denied his constitutional right to a trial by jury (U.S.Const., art. III, § 2, cl. 3, and Amends. 6 and 7; Cal.Const., art. I, § 16). Because this is not a criminal action or proceeding, however, petitioner was not entitled to a jury trial as a defendant is a criminal prosecution (Sharpe v. State ex rel. Oklahoma Bar Association,supra, 448 P.2d 301; In re Inquiry Relating to Rome, supra, 218 Kan. 198, 542 P.2d 676; Keiser v. Bell, supra, 332 F.Supp., pp. 616--617). The right to a trial by jury in civil actions or proceedings is the right as it existed at common law at the time the Constitutions were adopted (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286--287, 231 P.2d 832; Cline v. Superior Court (1920) 184 Cal. 331, 339, 193 P. 929; In re Inquiry Relating to Rome, supra). Because this special proceeding did not exist at common law, and no statute provides for trial by jury in this proceeding, petitioner was not entitled to a jury trial.

Petitioner contends that he was improperly denied the presumption of innocence and the standard of proof beyond a reasonable doubt (Pen. Code, § 1096). He argues that if due process of law and equal protection of the law require a standard of proof beyond a reasonable doubt in a juvenile court proceeding (In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368) and in a proceeding to determine whether a person is...