BILL ANALYSIS
AB 2729
Page 1
Date of Hearing: May 4, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 2729 (Leno) - As Amended: April 1, 2004
SUBJECT : JUDICIAL MISCONDUCT INVESTIGATIONS: DUE PROCESS
KEY ISSUES :
1)IS THIS, AS THE CALIFORNIA JUDGES ASSOCIATION SUGGESTS, A
CLASSIC "GOOSE AND GANDER" SITUATION, WHEREBY JUDGES BEING
INVESTIGATED FOR ALLEGED MISCONDUCT SHOULD HAVE THE SAME ABILITY
TO SUBPOENA AND DEPOSE WITNESSES IN JUDICIAL MISCONDUCT
INVESTIGATIONS AS THE COMMISSION ON JUDICIAL PERFORMANCE (CJP)
HAS WHEN INVESTIGATING THEM?
2)WILL, ON THE OTHER HAND, THE PROPOSED GRANT OF NEW PROCEDURAL
RIGHTS FOR JUDGES BEING INVESTIGATED FOR POSSIBLE MISCONDUCT
PRIOR TO THE ISSUANCE OF FORMAL PROCEEDINGS BE UNNECESSARY,
OVERLY COSTLY, POTENTIALLY UNCONSTITUTIONAL, AND CHILLING OF
WITNESS COOPERATION IN THESE INVESTIGATIONS, AS ARGUED BY THE
CJP?
SYNOPSIS
According to the author, the purpose of this legislation, which is
sponsored by the California Judges Association (CJA), is to assure
that judges facing investigations by the Commission on Judicial
Performance ("CJP or Commission") are accorded the same ability to
issue subpoenas and depose witnesses as the Commission itself
currently has. The author states that current law gives the
Commission the ability to obtain sworn discovery of witnesses in
investigating alleged judicial misconduct, while denying judges
that fundamental due process right. CJA argues this is a classic
due process issue, and that what's good for the goose is good for
the gander in this important area of judicial misconduct
investigations.
In strong opposition to the bill, the Director of the CJP argues
on behalf of the Commission that this legislation is flawed for a
host of reasons. These reasons include that, according to the
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Commission, the bill is likely unconstitutional in that it unduly
impinges upon the Commission's constitutionally-vested authority
to make its own determinations about the process that is due
judges prior to official charges being levied against a judge. CJP
also argues that valid reasons exist for restricting depositions
in judicial disciplinary proceedings prior to charges being made,
including that in recent years the Judicial Council has purchased
insurance which pays for judges' costs to defend disciplinary
proceedings and that allowing for such depositions will cause
substantial security and other costs on an agency that has already
been hit with substantial budgetary reductions in recent years.
Finally CJP argues that the bill fails to provide an appropriate
forum for the resolution of discovery disputes that would
inevitably arise under the bill, and that permitting depositions,
particularly of court staff, will likely increase the disruption
experienced by courts as a result of commission proceedings and
may sadly discourage already reluctant witnesses from reporting
misconduct to the commission and from cooperating with the
commission.
SUMMARY : Seeks to allow judges facing investigations by the
Commission on Judicial Performance ("CJP or Commission") the same
ability to issue subpoenas and depose witnesses as the Commission
itself currently has. Specifically, this bill :
1)Amends provisions in the Government Code to authorize CJP to
"take testimony" in the conduct of investigations and formal
proceedings involving potential judicial misconduct.
2)Permits deposition orders issued by the CJP upon a showing by
the judicial officer being investigated by the CJP that the
proposed deponent is a material witness, and there is standard
"good cause" for the taking of the requested deposition.
EXISTING LAW :
1)Constitutionally vests the CJP with the authority to make rules
regarding CJP procedures including, but not limited to, rules
and procedures for the investigation of judges, for handling the
confidentiality of complaints to, and investigations by, the
CJP. Also vests CJP with the duty to make rules regarding
formal proceedings against judges when there is cause to believe
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either that the judge has a serious disability that interferes
with the performance of the judge's duties or that the judge has
engaged in wrongdoing. (Cal. Constitution Article 6, section
18(i). Approved by the voters November 8, 1994, as Proposition
190.)
2)Permits the CJP to publicly or privately admonish a judge or
former judge found to have engaged in an improper action or
dereliction of duty (Cal. Const. Art. 6, section 18(d)) and
provides that when CJP institutes formal proceedings, the notice
of charges, the answer, and all subsequent papers and
proceedings shall be open to the public. (Cal. Const. Art. 6,
section 18(j).)
3)Effectively gives the CJP the ability to obtain sworn discovery
of witnesses in investigating alleged judicial misconduct while
denying judges this right. (Rule 122 of the Commission on
Judicial Performance and Government Code Sections 68750, 68751,
68752, and 68753.)
4)Provides, in the Commission's "Rule 122" regarding discovery
procedures, that, amongst other things, "discovery may be
obtained only after a written notice of formal proceedings is
issued" and that discovery requests may be made in writing at
any time only after the filing of the notice of formal
proceedings. Depositions may be taken only after initiation of
formal charges against the judge, and "the commission or the
masters shall order the taking of the deposition of any person
upon a showing by the side requesting the deposition that the
proposed deponent is a material witness who is unable or cannot
be compelled to attend the hearing. If a deposition is ordered,
the procedures stated in Government Code section 68753 shall be
followed. The side requesting the deposition shall bear all
costs of the deposition." (Commission on Judicial Performance
Rule 122, Adopted 12/1/96.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill raises important legal and policy issues
about the powers of the Commission on Judicial Performance (CJP)
and about how much "process should be due" judges facing
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investigations by the CJP for possible misconduct. In support of
the bill, the author writes that the purpose of the bill is to
assure that judges facing investigations by the Commission are
accorded sufficient due process, by providing judges the same
ability to issue subpoenas and depose witnesses as has the
Commission itself.
ARGUMENTS IN SUPPORT : This bill is sponsored by the California
Judges Association, which argues in support that the existing
procedures for investigating judges for alleged misconduct are
inadequate. According to CJA:
The Commission essentially argues that no changes to
Section 68753 are required because the existing system
is adequate. Beyond the obvious reply that we are
seeking discovery proceedings which are fair and
balanced, and not merely adequate, counsel for judges
who approached the sponsor about the need for AB 2729
maintain that the system is most assuredly not
"adequate". While the Commission's Trial Counsel may
encourage witnesses to speak to defense counsel, those
involved with defending judges report that obtaining
witness cooperation can be exceedingly difficult. The
result is that judges often do not know the nature of
a witness' testimony until the hearing itself. We
will be prepared at the hearing on AB 2729, or in
further discussions preceding the hearing, to present
additional input concerning the practical importance
of deposition discovery in defending judges.
ARGUMENTS IN OPPOSITION : Writing in strong opposition to this
bill, the Chief Counsel and Director of the CJP (hereafter to be
referred to as "CJP") argues that the legislation raises a number
of legal problems and policy issues. She writes, amongst other
things, that the bill appears to violate the California
Constitution and the separation of powers doctrine, stating:
Article VI, section 18 (i) (1), (2) vests exclusive
authority in the commission for the promulgation of
rules for investigations and for formal proceedings
against judges. In contrast to the Judicial Council's
authority to promulgate court rules "not inconsistent
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with statute," no rule-making authority is reserved to
the Legislature by the Constitution... The
commission's restriction of the use of its subpoena
power and authority to order depositions appears to be
a valid exercise of its constitutional rulemaking
authority.
The CJP also contends that although the bill would permit judges
to take depositions prior to any charges being filed, "no due
process rights attach" at this juncture in the Commission's
proceedings. It also states that valid reasons exist for
restricting depositions in judicial disciplinary proceedings,
including that in recent years "the Judicial Council has purchased
insurance - available to all California judges - that affords
counsel to defend disciplinary proceedings. This has eliminated
the cost to judges of depositions as a check against abuse of
discovery. In fact, it is the panel defense counsel paid through
the Judicial Council's insurance that are seeking to expand
deposition discovery."
CJP also states in opposition that the bill's proposal for
discovery depositions "fails to provide an appropriate forum for
the resolution of discovery disputes that would inevitably ensue
over the issuance of a deposition subpoena (for example whether
the proposed deponent was a material witness or not, whether there
otherwise was good cause for the taking of the deposition and the
manner of taking the deposition)." CJP states that the current
situation provides adequate due process protections to judges
because "depositions are equally available to either side to
perpetuate testimony of unavailable witnesses."
Finally, CJP states that "Nothing in the rules prevents counsel
for judges from interviewing witnesses and, in fact, the
commission's Trial Counsel encourage witnesses to speak to defense
counsel once charges have been filed... [However permitting]
depositions, particularly of court staff, is likely to increase
the disruption experienced by courts as a result of commission
proceedings and may discourage already reluctant witnesses from
reporting misconduct to the commission and from cooperating with
the commission."
The Judges' Association Response to the Commission's Opposition:
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In response to the CJP arguments noted above, CJA states the
following points:
CJP Fails to Recognize the Co-Extensive Jurisdiction of the
Legislature in Procedural Issues: CJA disagrees with CJP's
constitutional assertion, stating that CJP has failed to cite
any case authority for its assertion of exclusive authority in
the Commission for the promulgation of rules for formal
proceedings against judges. Writes CJA: "[T]he plain language
of the constitutional provision in question makes no reference
to exclusive jurisdiction, and a basic rule of statutory
construction is that language should not be inferred where none
exists." CJA states that CJA's reliance upon the case of
California Court Reporters Association, Inc. v. Judicial Council
of California (1995) 39 Cal.App.4th 15, for its argument that
any authority in the Legislature in this area is secondary to
the Commission and available only when the Commission authority
has not been exercised simply "misreads the opinion, which
actually provides authority for the legislative act exercised in
AB 2729."
Judges are Entitled to Additional Due Process Protections Upon the
Filing of Formal Charges: CJA also disagrees with CJP's claim
that judges are not entitled to due process at the pre-formal
proceedings stage of an investigation, stating that "To the
contrary, the cases suggest that judges facing the ultimate
penalty of removal from office should have expanded due process
rights" from the moment an investigation into their alleged
misconduct commences.
Commission Arguments Concerning Delay and Costs Must be Considered
in Light of Their Role in an Adversarial Process: Finally, CJA
bristles at what it perceives as CJP's minimization of the need
for full due process rights in this area at the commencement of an
investigation of a judge's alleged misconduct, stating in part
that:
... due process will sometimes lengthen proceedings,
with attendant costs, but such is the cost of
providing individuals with the tools to defend
themselves against charges which could result in
removal from office. It is also possible, of course,
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that the converse is true: the ability to obtain
sworn testimony prior to the hearing on the charges
could reduce the issues to be litigated in hearings
and reduce the time and cost of proceedings...
Discovery dispute resolution mechanism : The author has informed
the Committee that should this legislation move forward he intends
to work with court representatives, CJP and other interested
parties to address concerns raised about how best to resolve
discovery disputes under the bill.
Prior Related Legislation :
SB 1623 (Kopp) of 1998 sought to make various changes to the
process through which CJP investigates and disciplines judges.
Amongst other things, that bill sought to authorize a judge who is
the subject of a CJP investigation to appear before the CJP and
testify, personally or through an attorney, prior to the issuance
of formal charges against the judge. Governor Wilson vetoed the
bill stating he felt it an unconstitutional incursion into the
rule-making authority of the CJP.
AB 1110 (Escutia) also of 1998, sought to circumscribe what
constitutes misconduct by a judge, and was similarly vetoed by
Governor Wilson due to his belief that the bill unconstitutionally
sought to establish rules for the conduct of judges.
REGISTERED SUPPORT / OPPOSITION :
Support
California Judges Association (sponsor)
Opposition
Commission on Judicial Performance
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334