The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
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of : No. 86-1103
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JOHN K. VAN DE KAMP : MAY 27, 1987
Attorney General :
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RODNEY O. LILYQUIST :
Deputy Attorney General :
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THE COMMISSION ON JUDICIAL PERFORMANCE has requested an opinion on the
following question:
Are Code of Civil Procedure section 2093 and Government Code section
1225 constitutional in requiring the Commission on Judicial Performance to issue
certifications under specified conditions?
CONCLUSION
Code of Civil Procedure section 2093 and Government Code section 1225
are constitutional in requiring the Commission on Judicial Performance to issue
certifications under specified conditions.
ANALYSIS
The Legislature has recently amended Code of Civil Procedure section
2093 and Government Code section 1225 (Stats. 1986, ch. 1418) to require the
Commission on Judicial Performance ("Commission") to issue a certification to a
former judge or justice under certain conditions. Section 2093 provides:
"(a) Every court, every judge, or clerk of any court, every justice,
and every notary public, and every officer or person authorized to
take testimony in any action or proceeding, or to decide upon
evidence, has power to administer oaths or affirmations.
"(b) A former judge or justice of a court of record in this
state who retired or resigned from office, other than a judge or
justice who was retired by the Supreme Court for disability, shall
have the power to administer oaths or affirmations, if the former
judge or justice requests and receives a certification from the
Commission on Judicial Performance that there was no formal
disciplinary proceeding pending at the time of retirement or
resignation. Where no formal disciplinary proceeding was pending at
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the time of retirement or resignation, the Commission on Judicial
Performance shall issue the certification.
"No law, rule, or regulation regarding the confidentiality of
proceedings of the Commission on Judicial Performance shall be
construed to prohibit the Commission on Judicial Performance from
issuing a certificate as provided for in this section."
Section 1225 similarly states:
"Every executive and judicial officer and every Member of the
Legislature may administer and certify oaths.
"A former judge of a court of record in this state who retired
or resigned from office, other than a judge who was retired by the
Supreme Court for disability, shall be deemed a judicial officer for
purposes of this section, if the former judge requests and receives
a certification from the Commission on Judicial Performance that
there was no formal disciplinary proceeding pending at the time of
retirement or resignation. Where no formal disciplinary proceeding
was pending at the time of retirement or resignation, the Commission
on Judicial Performance shall issue the certification. No law,
rule, or regulation regarding the confidentiality of proceedings of
the Commission on Judicial Performance shall be construed to
prohibit the Commission on Judicial Performance from issuing a
certificate as provided for in this section."
The question presented for resolution is whether the Commission may
constitutionally issue a certification as directed by these two statutes. We
conclude that the statutes are consistent with the provisions of the California
Constitution.
In Mosk v. Superior Court (1979) 25 Ca1.3d 474, 489-490, the Supreme
Court summarized the duties of the Commission as follows:
"It has authority to investigate complaints of judicial misconduct,
a judge's failure or inability to perform the duties of a judge, and
other conduct prejudicial to the administration of justice. The
Commission has authority to conduct hearings, make findings of fact
(see Gov. Code, §§ 68750-68755; Cal. Rules of Court, rules
901-922), and recommend to the Supreme Court that a given judge be
censured or removed or retired from the court. (Cal. Const., art.
VI, § 18, subd. (c).) The Commission may privately admonish a judge
for improper action or a dereliction of duty, but it has no power to
censure, remove, retire, or otherwise discipline a judge. It can
only make certain recommendations to the Supreme Court which then
reviews the evidence and makes its own findings. ( Geiler v.
Commission on Judicial Qualifications (1973) 10 Ca1.3d 270, 276;
Spruance v. Commission on Judicial Qualifications (1975) 13 Ca1.3d
778.) Although the Commission's findings are given great weight by
the Supreme Court, they are inconclusive except where the
Commission, having made a preliminary investigation, concludes that
there is insufficient evidence to charge a judge with judicial
misconduct."
The Commission conducts its affairs in accordance with rules
promulgated by the Judicial Council. Section 18 of article VI of the
Constitution not only specifies what the Commission may do but it mandates that
the Judicial Council adopt rules concerning the Commission's proceedings.
Section 18 provides in relevant part:
"(a) A judge is disqualified from acting as a judge, without
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loss of salary, while there is pending . . . a recommendation to
the Supreme Court by the Commission on Judicial Performance for
removal or retirement of the judge.
"(b) On recommendation of the Commission on Judicial
Performance or on its own motion, the Supreme Court may suspend a
judge from office without salary. . . .
"(c) On recommendation of the Commission on Judicial
Performance the Supreme Court may (1) retire a judge for disability
that seriously interferes with the performance of the judge's duties
and is or is likely to become permanent, and (2) censure or remove
a judge for action occurring not more than 6 years prior to the
commencement of the judge's current term that constitutes wilful
misconduct in office, persistent failure or inability to perform the
judge's duties, habitual intemperance in the use of intoxicants or
drugs, or conduct prejudicial to the administration of justice that
brings the judicial office into disrepute. The commission may
privately admonish a judge found to have engaged in an improper
action or a dereliction of duty, subject to review in the Supreme
Court in the manner provided for review of causes decided by a court
of appeal.
" . . . . . . . . . . . . . . . . . . . . . . .
"(f) The Judicial Council shall make rules implementing this
section and providing for confidentiality of proceedings."
The Judicial Council is comprised of the Chief Justice and one other
justice of the Supreme Court, three Court of Appeal justices, five superior court
judges, three municipal court judges, two justice court judges, four State Bar
members and two legislators. (Cal. Const., art. VI, § 6.) Besides adopting
rules for the Commission's proceedings, it has several other duties, including:
"To improve the administration of justice the council shall
survey judicial business and make recommendations to the courts,
make recommendations annually to the Governor and Legislature, adopt
rules for court administration, practice and procedure, not
inconsistent with statute, and perform other functions prescribed by
statute." (Cal. Const., art. VI, § 6.)
The Judicial Council's rules for the Commission's proceedings are contained in
the California Rules of Court, rules 901-922. Rule 902 provides for the
confidentiality of the Commission's proceedings:
"(a) Except as provided in this rule, all papers filed with
and proceedings before the Commission, or before the masters
appointed by the Supreme Court pursuant to rule 907, shall be
confidential until a record is filed by the Commission in the
Supreme Court. Upon a recommendation of censure, all papers filed
with and proceedings before the Commission or masters shall remain
confidential until the judge who is the subject of the proceedings
files a petition in the Supreme Court to modify or reject the
Commission's recommendation or until the time for filing a petition
expires.
"Information released by the Commission under this subdivision
in proceedings resulting in a recommendation of censure shall make
appropriate reference to a petition for review in the Supreme Court
filed by the judge, if any is filed, to the end that the public will
perceive that the Commission's recommendation and findings are
wholly or partly contested by the judge.
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"(b) The Commission may release information regarding its
proceedings under the following circumstances:
"(1) If a judge is publicly charged with involvement in
proceedings before the Commission resulting in substantial
unfairness to him, the Commission may, at the request of the judge
involved, issue a short statement of clarification and correction.
"(2) If a judge is publicly associated with having engaged in
serious reprehensible conduct or having committed a major offense,
and after a preliminary investigation or a formal hearing it is
determined there is no basis for further proceedings or
recommendation of discipline, the Commission may issue a short
explanatory statement.
"(3) When a formal hearing has been ordered in a proceeding in
which the subject matter is generally known to the public and in
which there is broad public interest, and in which confidence in the
administration of justice is threatened due to lack of information
concerning the status of the proceeding and the requirements of due
process, the Commission may issue one or more short announcements
confirming the hearing, clarifying the procedural aspects, and
defending the right of a judge to a fair hearing.
"(4) If a judge retires or resigns from judicial office
following institution of formal proceedings, the Commission may, in
the interest of justice or to maintain confidence in the
administration of justice, release information concerning the
investigation and proceedings to a public entity .
"(5) Upon completion of an investigation or proceeding, the
Commission shall disclose to the person complaining against the
judge that after an investigation of the charges the Commission (i)
has found no basis for action against the judge, (ii) has taken an
appropriate corrective action, the nature of which shall not be
disclosed, or (iii) has filed a recommendation for the censure,
removal, or retirement of the judge. The name of the judge shall
not be used in any written communication to the complainant, unless
the record has been filed in the Supreme Court." (Emphasis added.)
Several reasons have been given for maintaining the confidentiality
of the Commission's proceedings. In Mosk v. Superior Court, supra, 25 Ca1.3d
474, 491-492, the court stated:
"The confidentiality of investigations and hearings by the
Commission is based on sound public policy. Confidentiality
encourages the filing of complaints and the willing participation of
citizens and witnesses by providing protection against possible
retaliation or recrimination. (McCartney v. Commission on Judicial
Qualifications (1974) 12 Ca1.3d 512, 521; Landmark Communications,
Inc. v. Virginia (1978) 435 U.S. 829.) Confidentiality protects
judges from injury which might result from publication of unexamined
and unwarranted complaints by disgruntled litigants or their
attorneys (Landmark Communications, Inc. v. Virginia, supra), or by
political adversaries. Confidentiality of investigations by the
Commission preserves confidence in the judiciary as an institution
by avoiding premature announcement of groundless claims of judicial
misconduct or disability. ( Landmark Communications, Inc. v.
Virginia, supra.) Confidentiality of proceedings before the
Commission is essential to protecting the judge's constitutional
right to a private admonishment (see Cal. Const., art. VI, § 18,
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subd. (c)), if the circumstances so warrant. When removal or
retirement is justified by the charges, judges are more likely to
resign or retire voluntarily without the necessity of a formal
proceeding if the publicity that would accompany such a proceeding
can thereby be avoided. (Landmark Communications, Inc. v. Virginia,
supra, 435 U.S. 829.) Leading writers have recognized that
confidentiality of investigations and hearings by the Commission is
essential to its success. (See Frankel, Judicial Conduct and
Removal of Judges for Cause in California (1962) 36 Cal.L.Rev. 72;
Frankel, Removal of Judges: California Tackles an Old Problem
(1963) 49 A.B.A. J. 166, 170; Traynor, Rising Standards of Courts
and Judges (1965) 40 State Bar J. 677, 688; 1965 Rep. of the Com. on
Judicial Qualifications to the Governor, p. 2.)" (Fns. omitted,
emphasis added.)
To this list may be added the purpose of protecting the right of the Supreme
Court "to decide for itself whether to administer public censure." ( Gubler v.
Commission on Judicial Performance (1984) 37 Cal.3d 27, 60.)
Having thus examined the statutes in question and the roles of the
Commission and Judicial Council under the Constitution, we turn to the applicable
rules for determining whether these statutes are constitutional. In Methodist
Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, the Supreme Court stated:
"Unlike the federal Constitution, which is a grant of power to
Congress, the California Constitution is a limitation or restriction
on the powers of the Legislature. [Citations.] Two important
consequences flow from this fact. First, the entire law-making
authority of the state, except the people's right of initiative and
referendum, is vested in the Legislature, and that body may exercise
any and all legislative powers which are not expressly or by
necessary implication denied to it by the Constitution. [Citations.]
In other words, 'we do not look to the Constitution to determine
whether the legislature is authorized to do an act, but only to see
if it is prohibited.' [Citation.]
"Secondly, all intendments favor the exercise of the
Legislature's plenary authority: 'If there is any doubt as to the
Legislature's power to act in any given case, the doubt should be
resolved in favor of the Legislature's action. Such restrictions
and limitations [imposed by the Constitution] are to be construed
strictly, and are not to be extended to include matters not covered
by the language used.' [Citations.] Conversely, a constitutional
amendment removing those restrictions and limitations should, in
cases of doubt, be construed liberally 'in favor of the
Legislature's action.'"
Moreover, in Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, the
court observed:
"[O]ur past cases establish that the presumption of
constitutionality accorded to legislative acts is particularly
appropriate when the Legislature has enacted a statute with the
relevant constitutional prescriptions clearly in mind. [Citation.]
In such a case, the statute represents a considered legislative
judgment as to the appropriate reach of the constitutional
provision. Although the ultimate constitutional interpretation must
rest, of course, with the judiciary [citation], a focused
legislative judgment on the question enjoys significant weight and
deference by the courts."
Applying these principles, we find that the Legislature has enacted
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Code of Civil Procedure section 2093 and Government Code section 1225 with the
language of article VI of the Constitution in mind. Both statutes provide:
"No law, rule, or regulation regarding the confidentiality of
proceedings of the Commission on Judicial Performance shall be
construed to prohibit the Commission on Judicial Performance from
issuing a certificate as provided for in this section."
Hence each must be given "significant weight and deference" in considering its
constitutionality.
While these statutes are tangentially related to the constitutional
powers of the Commission and Judicial Council, the Legislature has not sought to
compromise the authority of either public body. Disclosure under the statutes
is made only to the former judge and only when "there was no formal disciplinary
proceeding pending at the time of retirement or resignation." In the absence of
such proceedings, the statutes do not impinge upon the Judicial Council's
authority to adopt rules with respect to the Commission's proceedings;
maintaining the confidentiality of the proceedings is assured under the
legislation. The goals of protecting complainants and witnesses and the right
of the Supreme Court to administer public censure are not threatened where the
disclosure concerns solely the nonexistence of proceedings.
It must also be noted that the constitutional provision for
confidentiality terminates when the Commission files its record in the Supreme
Court. (See Gubler v. Commission on Judicial Performance, supra, 37 Cal.3d 27,
59-60; Mosk v. Superior Court, supra, 25 Cal.3d 474, 490, 499.) Such is also the
basic provision of rule 902 of the California Rules of Court. We believe that
disclosure to a former judge that no proceedings existed may be treated similarly
to the situation where the proceedings have terminated. Support for this
conclusion may be found in Gubler v. Commission on Judicial Performance, supra,
37 Cal.3d 27, 59, where the court observed that the constitutional provision for
confidentiality "was construed in Mosk v. Superior Court (1979) 25 Cal.3d 474,
to require that commission proceedings be confidential, at least while they are
under way." Code of Civil Procedure section 2093 and Government Code section
1225 do not compromise any proceedings of the Commission that are, or were ever,
underway.
We are directed to harmonize and give effect to both the Constitution
and the Legislature's statutes if at all possible. (See State Personnel Bd. v.
Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 437-441; Pacific Legal
Foundation v. Brown, supra, 29 Cal.3d 168, 193-199.) Here we find no
impermissible conflict. Simply put, nothing is disclosed to the public under
these statutes, and no pending or closed proceeding of the Commission is
compromised. Different public purposes are served by the constitutional
provisions and the statutes with differing consequences.
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In answer to the question presented, therefore, we conclude that Code
of Civil Procedure section 2093 and Government Code section 1225 are
constitutional in requiring the Commission to issue certifications under the
specified conditions.
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