Mosk v. Superior Court

Decision Date18 October 1979
Citation25 Cal.3d 474,159 Cal.Rptr. 494,601 P.2d 1030
Parties, 601 P.2d 1030 Stanley MOSK, an Associate Justice of the Supreme Court, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; COMMISSION ON JUDICIAL PERFORMANCE, Real Party in Interest. L.A. 31140.
CourtCalifornia Supreme Court

Mitchell, Silberberg & Knupp, Edward M. Medvene and Richard M. Mosk, Los Angeles, for petitioner.

Ephraim Margolin, San Francisco, Richard J. Kohlman, Beauzay, Hammer, Ezgar, Bledsoe & Rucka, Victor H. Beauzay, Philip L. Hammer, Michael J. Ezgar, Robert T. Bledsoe, N. Michael Rucka, Stephen D. Sprenkle, Melvyn D. Silver, Emmett P. O'Boyle, Edward M. Suden, San Jose, Louise H. Ginsburg, Los Altos, Alfred Lombardo, Sacramento, Paul E. Jacobs, San Jose, Susan T. Levin, Saratoga, J. Andrew McKenna, Salina, Frederick L. Boyd, John A. Stonich, Stockton, and Ann E. Bailey, Cupertino, as amici curiae on behalf of petitioner.

No appearance for respondent.

Beardsley, Hufstedler & Kemble, Seth M. Hufstedler, John Sobieski, Burton J. Gindler, Peter O. Israel, Pierce O'Donnell and Evelyn Balderman, Los Angeles, for real party in interest.

Gray, Cary, Ames & Frye, Josiah L. Neeper, Edward J. McIntyre, Jan S. Gonnerman, San Diego, Lawrence W. Jordan, Jr., and Joanne M. Garvey, San Francisco, as amici curiae on behalf of real party in interest.

THE COURT: *

Associate Supreme Court Justice Stanley Mosk filed a petition for a writ of mandate, or other appropriate relief, in the Los Angeles County Superior Court to quash a subpoena ordering him to appear as a witness at a public hearing before the Commission on Judicial Performance (hereinafter the "Commission"), which is investigating possible judicial misconduct by one or more justices of the Supreme Court. 1 Justice Mosk sought to quash the subpoena on the ground the public investigation, pursuant to rule 902.5 of the California Rules of Court, is unconstitutional in light of California Constitution article VI, section 18, subdivision (f), which requires the Judicial Council to make rules which provide for confidentiality of proceedings before the Commission. The superior court denied Justice Mosk's petition. He then petitioned the Court of Appeal, Second Appellate District, for a writ of mandate to compel the superior court to vacate its order denying his petition and to enter a new order granting relief. The Court of Appeal granted Justice Mosk's petition and issued a peremptory writ which ordered the superior court to quash the Commission's subpoena of Justice Mosk. Before the Court of Appeal's decision became final, the Commission petitioned the California Supreme Court for a writ of mandate to compel the Court of Appeal to vacate the peremptory writ; in the alternative, the Commission requested that the Supreme Court transfer the proceeding to itself on its own motion. (Commission on Judicial Performance v. Court of Appeal, L.A. No. 31134.) All the Supreme Court justices, except Associate Justice Newman, disqualified themselves from acting on the Commission's petition. The Chief Justice assigned six Court of Appeal justices, who were selected by lot pursuant to an order by the Supreme Court, to act on the petition. 2 This court then ordered the first proceeding (Mosk v. Superior Court, L.A. No. 31140) transferred to itself on its own motion. 3 (See Cal.Const., art. VI, § 12; Cal. Rules of C ourt, rule 20.)

Justice Mosk raises two principal questions: (1) Does the Supreme Court, composed of all assigned judges pro tempore, have constitutional authority or jurisdiction to act in this matter? (2) If so, is rule 902.5 of the California Rules of Court unconstitutional in light of article VI, section 18, subdivision (f), of the California Constitution? As we shall explain, we conclude that this court has authority to decide the merits of this dispute, that rule 902.5 is unconstitutional because it violates the confidentiality requirement of article VI, section 18, subdivision (f), and that Justice Mosk consequently cannot be compelled to testify at a public hearing before the Commission.

I

Justice Mosk argues that this court, composed of all assigned judges pro tempore, has no constitutional authority or jurisdiction to act in this case, and that the peremptory writ of mandate issued by the Court of Appeal, Second Appellate District, must therefore stand as the decision of the court of last resort.

The California Constitution, article VI, section 2, provides: "The Supreme Court consists of the Chief Justice of California and 6 associate justices. The Chief Justice may convene the court at any time. Concurrence of 4 judges present at the argument is necessary for a judgment. (P) An acting Chief Justice shall perform all functions of the Chief Justice when the Chief Justice is absent or unable to act. The Chief Justice or, if the Chief Justice fails to do so, the court shall select an associate justice as acting Chief Justice."

The Chief Justice has long had constitutional authority to assign any lower court judge, who is otherwise qualified, to the Supreme Court to sit in place of a disqualified Supreme Court justice. The 1926 constitutional amendment which created the Judicial Council (Cal.Const., art. VI, § 1a now § 6) provided that the Chief Justice, as chairman of the Judicial Council, "shall seek to expedite judicial business and to equalize the work of the judges, and shall provide for the assignment of any judge to another court of a like or higher jurisdiction to assist a court or judge whose calendar is congested, to act for a judge who is disqualified or unable to act, or to sit and hold court where a vacancy in the office of judge has occurred." As amended in 1966 and 1974, this provision now reads: "The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge's consent if the court is of lower jurisdiction. A retired judge who consents may be assigned to any court." (Cal.Const., art. VI, § 6, par. 5th.) 4

Although the 1966 revision of article VI eliminated the language which empowered the Chief Justice to assign any judge to another court to act for a judge who is disqualified or unable to act, the 1966 revision was not intended to preclude the Chief Justice from assigning a duly qualified judge to another court to act for a disqualified judge. The 1966 revision was part of an overall policy of the Constitution Revision Commission to eliminate unnecessary language and to state the substance of existing sections more concisely and in modern terms. (Cf. People v. Tijerina (1969) 1 Cal.3d 41, 48, 81 Cal.Rptr. 264, 459 P.2d 680; see also Cal.Const.Revision Com., Proposed Revision (1966) p. 82.) The Constitution gives the Chief Justice broad authority to expedite the work of the courts (see People v. Najera (1979) 88 Cal.App.3d 930, 933-934, 152 Cal.Rptr. 124), and implicit in that authority is the Chief Justice's power to assign judges to assist the Supreme Court when regular Supreme Court justices are disqualified. Such assignments have become commonplace.

Justice Mosk argues that once the Chief Justice disqualified herself from participating in this proceeding, she was also disqualified from assigning other judges to the Supreme Court to decide this matter, and that the order assigning Court of Appeal judges to this court, is therefore void (citing Noorthoek v. Superior Court (1969) 269 Cal.App.2d 600, 604-606, 75 Cal.Rptr. 61, and discussion of authority of judge disqualified under Code of Civil Procedure, section 170, to make certain orders in the action or proceeding). When the Chief Justice is disqualified, normally the Acting Chief Justice makes assignments to the Supreme Court to fill vacancies. However, the fact that the Chief Justice is disqualified from deciding the merits of a given case does not preclude her from exercising her administrative responsibilities in assigning judges to replace disqualified Supreme Court justices. (Cf. Yelle v. Kramer (1974) 83 Wash.2d 464, 520 P.2d 927; State Board of Law Examiners v. Spriggs (1945) 61 Wyo. 70, 155 P.2d 285, cert. den., 325 U.S. 886, 65 S.Ct. 1571, 89 L.Ed. 2001.) Moreover, where, as here, all the Supreme Court justices were ultimately disqualified, the Chief Justice is empowered to make the assignment under the rule of necessity. 5

There is no constitutional provision, statute, or court rule which prescribes the manner in which assigned judges are to be selected, except for article VI, section 18, subdivision (e), which is not applicable here. 6 The manner, method, or criteria for selection of duly qualified assigned judges is within the inherent power of the Supreme Court and within the discretion of the Chief Justice in the exercise of her constitutional authority to make the assignments. 7 Selection of assigned judges by lot is a proper method which the Chief Justice may use to avoid charges of bias, prejudice, or favoritism in making the selection. (Cf. Yelle v. Kramer, supra, 83 Wash.2d 464, 520 P.2d 927.)

A duly assigned judge pro tempore generally has the same power and authority (pro hac vice) as a regular judge of the court to which he or she is assigned. (See Fay v. District Court of Appeal (1927) 200 Cal. 522, 540, 254 P. 896; see also Metropolitan Water District v. Adams (1942) 19 Cal.2d 463, 122 P.2d 257; Amos v. Superior Court (1960) 182 Cal.App.2d 343, 349-350, 6 Cal.Rptr. 252; see generally, 48 C.J.S., Judges, § 99, pp. 1111-1112; 46 Am.Jur.2d, Judges, § 254, pp. 271-272.) Logically, if one judge assigned to the Supreme Court to replace a disqualified Supreme Court justice has the power and authority of a Supreme Court justice in the assigned case, including the power to cast the decisive vote (see, e. g., Metropolitan Water District v. Adams, supra, 19 Cal.2d 463, 122 P.2d 257; People v. Cheatham ...

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