Fletcher v. Commission on Judicial Performance

KENNARD, J., Dissenting.

The majority finds that petitioner, Judge Thomas B. Fletcher, committed two instances of willful misconduct and a number of instances of conduct prejudicial to the administration of justice. It concludes that he should be removed from office. I disagree with the majority’s conclusion that removal is the proper sanction for Judge Fletcher’s misconduct, as well as with one of its findings of willful misconduct. None of Judge Fletcher’s acts of misconduct involved corruption or moral turpitude, and he has sought to reform his conduct. Removal is not necessary to protect the public and the judiciary. Instead, in my view, public censure is the appropriate sanction in this case.

I

As we recently explained, willful misconduct requires a finding by clear and convincing evidence that the judge acted in bad faith. “A judge acts in bad faith only by (1) performing a judicial act for a corrupt purpose (which is any purpose other than the faithful discharge of judicial duties), or (2) performing a judicial act with knowledge that the act is beyond the judge’s lawful judicial power, or (3) performing a judicial act that exceeds the *922 judge’s lawful power with a conscious disregard for the limits of the judge’s authority.” (Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1092 [ 77 Cal.Rptr.2d 408 , 959 P.2d 715 ].)

In the matter of Michael Toschi (count twelve), Judge Fletcher refused the prosecutor’s request, as part of a plea bargain, to dismiss drunk driving charges against Toschi and instead took steps to subpoena witnesses for trial. I agree that this was misconduct. But the record lacks clear and convincing evidence of the bad faith required for willful misconduct. There is no evidence that Judge Fletcher knew he was acting beyond his judicial powers or that he acted with conscious disregard of whether he was acting beyond his powers. Nor is Judge Fletcher’s suspicion that the prosecutor was trying to trick him into an erroneous dismissal that would portray him in a bad light clear and convincing evidence that he was acting for a corrupt purpose other than the faithful discharge of his judicial duties. Rather, he seems to have honestly believed that dismissal was an inappropriate resolution of the drunk driving charges against Toschi. Thus, I disagree with the majority that there is clear and convincing evidence that Judge Fletcher acted with the bad faith required for willful misconduct. Instead, I would find his conduct in this instance to be prejudicial conduct.

II

As our system of judicial discipline with its range of sanctions recognizes, not every instance of judicial shortcoming deserves the ultimate sanction of removal. We remove judges from office only when necessary for “the protection of the public, the enforcement of rigorous standards of judicial conduct, and the maintenance of public confidence in the integrity and independence of the judicial system.” (Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 912 [ 42 Cal.Rptr.2d 606 , 897 P.2d 544 ].) That standard is not met here.

It is important to note what is absent in this case. There is no hint that Judge Fletcher is corrupt or venal. There is no suggestion that the judge’s decisions have been colored by bias or favoritism. There is no suggestion of the judge’s incompetence or dereliction of duty.

What the record reveals instead is a judge who has discharged his duties diligently and in good faith but who sometimes has had difficulty in separating his judicial role from his role in the community. Especially in small communities like Judge Fletcher’s town of Bass Lake in Madera County, the lawyers who become judges are often active and prominent figures deeply involved in the life of the community. Becoming a judge requires the lawyer to disengage from those connections and assume a more detached role. Most *923 of the instances of misconduct by Judge Fletcher have arisen from his failure at times to maintain the detachment inhering in the office of judge, especially by engaging in ex parte contacts with parties and witnesses. On occasion, he has also displayed a quick temper in court.

Although Judge Fletcher’s conduct deserves sanction, the judicial system and the public will be adequately protected by public censure; removal is not necessary. As this court said in Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294, 339 [ 45 Cal.Rptr.2d 254 , 902 P.2d 272 ], “we would hesitate to remove a judge who showed himself ready, willing, and able to reform under a less severe sanction.” On the record here, Judge Fletcher is such a judge, and he should not be removed from office. He has expressed remorse and resolved to do better. He does not “generally refuse[] to admit he has done anything improper.” (Gonzalez v. Commission on Judicial Performance (1983) 33 Cal.3d 359, 377 [ 188 Cal.Rptr. 880 , 657 P.2d 372 ].) The most recent of the acts of misconduct in this case occurred in 1994. It does not appear that since then the Commission on Judicial Performance has brought any new formal charges against Judge Fletcher. On the facts of this case, public censure is a more appropriate sanction than, as the majority concludes, removal from office.

A review of our recent judicial discipline cases confirms my view that public censure is the appropriate sanction here. In Broadman v. Commission on Judicial Performance, supra, 18 Cal.4th 1079 , the disciplined judge committed willful misconduct by intentionally misleading a criminal defendant and his counsel in the course of a hearing. Abusing the judicial process, the judge “tricked” an HIV-positive criminal defendant and his defense counsel into agreeing to a continuance of the sentencing hearing so the judge could attempt to craft a sentence that would deny medical treatment to the defendant in prison. The judge also committed prejudicial conduct in two instances: (1) He attempted to influence the outcome of a civil action against an attorney with whom he had a longstanding personal dispute; and (2) he improperly commented to the press about two pending cases in which he was the judge, and continued to do so even after the Commission on Judicial Performance sent him two letters telling him to desist.

In my view, these instances of willful misconduct and prejudicial conduct, and the state of mind in which they were committed, are more egregious and offensive and do more to bring the judiciary into disrepute than does the misconduct that Judge Fletcher has committed. The discipline imposed in Broadman v. Commission on Judicial Performance, supra, 18 Cal.4th 1079 , however, was only public censure; the discipline imposed by the majority here is removal from office.

The most recent cases in which we removed a judge from office involved misconduct far more egregious than Judge Fletcher’s. In Doan v. Commission on Judicial Performance, supra, 11 Cal.4th 294, 339 , we removed from *924 office a judge who had displayed “moral turpitude, dishonesty, and corruption.” The judge’s willful misconduct included intervening on behalf of a defendant, her gardener, in a pending criminal case while at the same time presiding over his case; corruptly attempting to influence the outcome of a criminal case she was presiding over to ingratiate herself with the defendant’s aunt, a friend of the judge’s who had lent the judge money; and instructing witnesses not to cooperate with the Commission on Judicial Performance. The judge’s prejudicial conduct included failing to disclose, in a criminal case against another nephew of the same friend who had lent the judge money, her relationship with the defendant and failing to disclose that she had discussed the case with her friend; intervening in a criminal case in which the defendant was the friend who had lent her money; failing to report in her financial disclosure forms various loans she had-received; borrowing money from a court subordinate and from a police officer who regularly presented warrant applications to her; failing to list in her bankruptcy petition all her creditors; habitual tardiness in commencing court sessions; and offering to provide legal services to a convict whose wife had loaned the judge money. Nothing in this case comes close to that level of misconduct.

In Adams v. Commission on Judicial Performance, supra, 10 Cal.4th 866 , we removed a judge who committed willful misconduct by deliberately providing false information to the Commission on Judicial Performance and who committed prejudicial conduct by accepting gifts and favors from attorneys and a litigant appearing before him and assisting those attorneys in cases pending before the court of which he was a member and before another court. No form of misconduct is more destructive of public confidence in the judiciary than is bribery. And even without a quid pro quo, the image of a judge accepting gifts from lawyers and litigants corrodes the public trust in the judiciary. Accordingly, even though we concluded in Adams that the gifts and favors the judge had received had not corruptly influenced his decisions, removal was nonetheless warranted. Again, nothing in this case approaches the level of the misconduct in Adams .

For the reasons stated above, I would censure Judge Fletcher rather than remove him from office, the same conclusion reached by the three of the members of the Commission on Judicial Performance.

Mosk, J., concurred.

Petitioner’s application for review by the Supreme Court was denied March 17, 1999. Kennard, J., was of the opinion that the petition should be granted.