Ryan v. Commission On Judicial Performance

• Decision Date: 31 May 1988
• Docket Number: S.F. 25086
• Citation: 45 Cal.3d 518,247 Cal.Rptr. 378,754 P.2d 724
• Court: California Supreme Court
• Parties: , 754 P.2d 724, 76 A.L.R.4th 951 Richard RYAN, a Judge of the Municipal Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

Page 378

247 Cal.Rptr. 378

45 Cal.3d 518, 754 P.2d 724, 76 A.L.R.4th 951

Richard RYAN, a Judge of the Municipal Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

S.F. 25086.

Supreme Court of California In Bank.

May 31, 1988.

As Modified on Denial of Rehearing June 30, 1988.

Thomas J. Nolan, Kathleen C. Caverly, Nolan & Parnes, Palo Alto, for petitioner.

John K. Van de Kamp, Atty. Gen., Raymond J. Brosterhaus, II, and Eddie T. Keller, Deputy Attys. Gen., Dept. of Justice, Sacramento, for respondent.

BY THE COURT:

The Commission on Judicial Performance (hereafter the Commission) recommends that Municipal Court Judge Richard J. Ryan, of the Roseville-Rocklin Judicial District of Placer County, be removed for "wilful misconduct in office" (hereafter wilful misconduct) and "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" (hereafter prejudicial conduct). (Cal. Const., art. VI, § 18, subd. (c).) Judge Ryan petitions this court for remand to the Commission, alleging that he was denied due process of law because (1) numerous witnesses in these disciplinary proceedings were admonished not to speak to the judge or anyone, and (2) the Commission limited Judge Ryan's oral argument time to 45 minutes rather than the 2 hours he had requested. Judge Ryan also petitions for review, ¹ alleging that the Commission's findings of fact and conclusions of law are not supported by clear and convincing evidence.

After independently reviewing the record, we conclude that Judge Ryan has not been deprived of due process in this disciplinary proceeding. Moreover, we conclude that the Commission's recommendation of removal is supported by clear and convincing evidence.

I. Background Information.

Judge Ryan is 39 years of age and was born in San Mateo, California. He served in the Air Force from 1965 to 1968 and graduated from San Diego State University in 1971. The judge attended the University of San Diego Law School and graduated from that institution in 1974. He was admitted to the California State Bar soon after.

Judge Ryan moved to Auburn, where he worked in a law office for two years and then went into sole practice for another two years. In 1978 he was elected as a judge of the Justice Court for the Foresthill Judicial District. In 1982 he became municipal court judge in the Roseville-Rocklin Judicial District, Placer County, where he has served to the present time.

The Commission served Judge Ryan with notice of formal proceedings on January 14, 1986. Three special masters (the masters) were appointed to take testimony on this matter, and the Commission appointed examiners to present the case. After 13 days of hearings, the masters found that Judge Ryan had engaged in numerous acts of wilful misconduct and prejudicial conduct. The Commission then heard oral argument in the matter and determined that Judge Ryan committed three acts of wilful misconduct in office and seventeen acts of prejudicial conduct. The Commission dismissed 17 other charges as not proven. In reviewing the Commission's findings and conclusions, we are concerned only with the charges that the Commission sustained. (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, fn. 5, 119 Cal.Rptr. 841, 532 P.2d 1209.) The Commission recommended removal by a vote of five to two. The two commissioners in the minority espoused censure.

II. Petition for Remand Based on Alleged Due Process Violations.

A. Propriety of Admonishments.

Judge Ryan contends that he was denied due process of law because the examiners improperly admonished the witnesses during the preliminary investigation that they were not to talk to anyone about the subject of the investigation. The judge claims that this admonishment prevented him from adequately preparing for his defense because certain witnesses refused to speak with him.

The pertinent facts may be summarized briefly and are not in dispute. From September through December of 1985, the Commission conducted a preliminary investigation into the judicial performance of Judge Ryan. The investigation consisted of sworn interviews with over 100 people. After each interview, the examiners informed the interviewees of the confidential nature of the investigation and told them not to speak to anyone about it. Moreover, in some of the interviews the examiners admonished the interviewees specifically not to speak to Judge Ryan. While the preliminary investigation was being conducted, Judge Ryan wrote several letters to the Commission, objecting to the admonishments given to the witnesses. The Commission responded that it was not aware of any improprieties.

After the notice of formal proceedings was served, the judge received discovery information from the examiners from January through March, including tapes of the investigative interviews and lists of prospective witnesses. During this time Judge Ryan did not retain counsel or avail himself of applicable discovery procedures that would have allowed him to compel information from hesitant witnesses. ²

On March 31, 1986, the first day of hearings before the masters, Judge Ryan made a motion to dismiss or exclude evidence based on the allegedly improper admonishments. The masters placed the burden on the judge to identify which persons had been improperly admonished and which persons refused to speak to the judge as a result of the improper admonishments. The judge offered evidence that he had tried to speak to four witnesses, but that they had refused to speak with him. He claims he stopped seeking information at that point because the admonishments rendered his discovery futile.

Although Judge Ryan never proved that the admonishments caused the witnesses to refuse to speak with him, the masters nevertheless directed the examiners to send letters to those individuals who had been admonished, informing those witnesses that they were free to speak to the judge if they wished. The examiners initially sent letters only to those persons who had been admonished not to speak to Judge Ryan personally. However, on April 8, 1986, while the hearing before the masters was still pending, the examiners sent another 66 letters to every prospective witness they intended to call in the proceeding, informing those people that they could speak to the judge if they wished. The hearing before the masters continued through April 21, 1986.

On the third day of the hearings, the examiners indicated that they would agree to a continuance so that Judge Ryan could interview any witnesses he wished. The judge rejected a continuance, stating that the examiners should have to "live with" their errors. The masters then indicated that they would grant the judge a continuance at any time so that he could interview any of the witnesses that he claimed were improperly admonished, but the judge chose to stand on the record as it existed. During the remainder of the hearing, the masters began the practice of informing each witness who took the stand that they could speak to Judge Ryan. The masters subsequently denied the judge's motion for dismissal or exclusion of evidence.

Article VI, section 18 of the California Constitution and rule 902(a) of the California Rules of Court require that preliminary investigations by the Commission be strictly confidential. ³ Such confidentiality protects a judge from premature public attention and also protects the witnesses from intimidation. (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 520-521, 116 Cal.Rptr. 260, 526 P.2d 268; Mosk v. Superior Court, supra, 25 Cal.3d 474, 491, 159 Cal.Rptr. 494, 601 P.2d 1030.) In admonishing the interviewees as to the confidentiality of the proceedings, the examiners were faithful to the constitutional mandate of article VI, section 18. Moreover, newspaper articles published during the preliminary investigation indicate that the witnesses properly refused to speak to the press about the investigation because they had been admonished that the proceedings were confidential. Thus, the admonishments served their intended purpose.

Nevertheless, a judge certainly has the right to conduct a proper defense in disciplinary actions. Rule 910 of the California Rules of Court provides that "[i]n formal proceedings involving his censure, removal, retirement or private admonishment, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter." (Emphasis added.) While the language of rule 910 specifies a judge's right to conduct an adequate defense, it also indicates that the right attaches once formal proceedings are instituted. A judge does not have the same right while the Commission is conducting its preliminary investigation.

As we stated in McCartney, supra, 12 Cal.3d at page 519, 116 Cal.Rptr. 260, 526 P.2d 268, during the preliminary investigation stage the Commission has not yet begun its adjudicatory function, "but is merely attempting to examine citizen complaints in a purely investigatory manner." During this investigatory period the Commission must have the freedom to collect accurate and untainted information. The accuracy of the investigation could be compromised if the witnesses were allowed to discuss the matter with others, especially the judge. For this reason, the examiners conducting the investigation were correct in admonishing the witnesses not to speak to anyone.

Simply stated, a judge does not have the right to defend against a proceeding that has not yet been brought.

Thus, the issue presented is limited to whether the...