Sunday Commentary: Judicial Accountability is a High Threshold in the Current System

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It is difficult to remove a judge from the bench – and that is by design and probably the way we would prefer it.  After all, in a touchy and highly charged case, do you really want the judge presiding over your matter to be looking over his shoulder at his next election?

Like most things in our system, protecting good and dedicated judges from political pressures comes with a hefty price – it protects bad judges from accountability.

A case in point is Santa Clara County Judge Aaron Persky, who controversially gave former Stanford student Brock Turner a six-month jail sentence and probation for sexually assaulting an unconscious woman.  The DA in the case had asked for six years.

Whether you agree or disagree with Judge Persky’s decision, the process for removing a judge is difficult.  Activists have collected 1.2 million signatures to force impeachment hearings.  However, last week legal experts, according to an NBC story, said impeachment is unlikely because the sentence was within legal guidelines and the judge did not commit an impeachable offense.

That leaves two other alternatives in the Judge Persky case.  The voters can collect enough signatures to recall the judge. Or the California Commission on Judicial Performance has the power to remove Judge Persky from the bench.

However, removal by the California Commission on Judicial Performance seems highly unlikely, given that it does not appear that the judge broke any laws.  In April 2015, the LA Times ran a story which reported that in 2014, 43 California judges were reprimanded for misconduct.

The commission gets about 1000 complaints each year, so official reprimand is itself extremely rare.

The most serious complaints were two judges having sex with women in their chambers, a traffic court judge delegating his job to his clerk, and a family law judge calling parents who appeared before him “rotten,” and a mother a “train wreck” and a “liar.”

None of this caused removal.  The Times reports, “The judges, among 43 disciplined last year by California’s Commission on Judicial Performance, received rebukes ranging from public censure or admonishment to a confidential ‘advisory’ letter.”

“The vast majority of complaints against judges result in no discipline, and most misconduct is resolved by sending judges private letters,” the Times reported.

The conduct by Kern County Judge Cory Woodward, a Governor Schwarzenegger appointment, came close to causing his removal.  He had “sex in his chambers with two former students and tried to get one of them a job in the county prosecutor’s office.”

“Engaging in sexual intercourse in the courthouse is the height of irresponsible and improper behavior by a judge,” the Commission said.

“Woodward’s misconduct could have led to his removal from the bench, the report said, but being contrite, fully cooperating with investigators and earning reviews that he was hard-working, intelligent and conscientious spared him.”

The task becomes much more difficult when you are dealing with a retired judge, who acts as a visiting judge, presiding over courts when one of the regular superior court judges goes on vacation.  Unlike a regular judge who may face election and the possibility of recall, the Commission seems to have full jurisdiction.

If having sex in chambers and currying favor cannot get a judge removed, the bar is set quite high.

The Vanguard is concerned with the conduct of Judge Arvid Johnson in the case of Benoit v. Gilson.  At least two sources who did not wish to be identified expressed concern to the Vanguard over the judge’s knowledge of the law and his handling of sensitive cases.

In the matter at hand, there are several concerns.

First, this case had been set for trial by Judge Kathleen White, who set up some parameters – for example, allowing the mother who is in Europe, Claire Benoit, to have her deposition conducted via Skype so long as she goes before the deposition of the father, Eric Gilson.  In a hearing in July, Judge Johnson allowed the father to do his deposition via Skype despite the fact that no special accommodation was needed, and then at the next hearing undid the Skype allowance altogether.

But, more concerning, there was a five-day request for a hearing granted despite the fact that Ms. Benoit’s attorney let the DA know that she was unavailable for the hearing.

Judge Johnson, when confronted with this fact, first claimed that the attorney, Kim Robinson, was there, and secondly claimed that she appeared via phone – neither of which were true.

The judge gave orders that changed Judge White’s ruling, despite the fact that Ms. Robinson was not there to represent her client.

In the next hearing, Ms. Robinson indicated that they were filing an oral Penal Code section 170.6 motion to disqualify Judge Johnson.  The judge stated that the motion needed to be in writing.

Ms. Robinson responded, “Your Honor, the peremptory challenge does not need to be in writing. It can be made orally.”

In her writ to the appellate court, Ms. Robinson argues that, under 170.6, “A judge shall not hear any matter involving a contested issue of law or fact where it is established that the judge is prejudiced against a party or attorney, or the interests of a party or attorney appearing in the action or proceeding.”

Section 170.6 “permits a party to an action to disqualify summarily an assigned judge based on a sworn statement of the party of the party’s belief that the judge is prejudiced against that party’s attorneys.”

Furthermore, “Provided the statement is timely and in proper form, the judge has no discretion to refuse the challenge.”  The right to disqualify a judge under section 170.6 “is automatic in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.”

Ms. Robinson points out, “Section 170.6 subd. (2) prescribes a 10-day period within which to make a peremptory challenge to the assignment of a judge for all purposes. The period is commenced by ‘notice’ of the assignment.”  She cites case law that says if the notice of assignment is served by mail, the 10-day peremptory challenge period is extended to a 15th day.

She argues, “In the present case, the July 20, 2016, minute order notifying the parties that the matter was being heard in Department 4 by Judge Johnson was served by mail to an address in California for Petitioner’s counsel.”  She added, “The date of August 2, 2016 is within 15 days of the service by mail of the notice on July 20, 2016, and therefore the challenge under section 170.6 was timely, and it was error for Judge Johnson to conclude otherwise.”

Moreover, under 170.6, it “also expressly authorizes the making of a peremptory challenge orally. It was also error for the court to conclude that the motion was defective because it was not made in writing.”

The appellate court will be able to undo some of this damage – if Ms. Robinson is correct on the law.  But the bigger question is whether Judge Johnson is even qualified at this point to preside over this or any matter if he doesn’t know the law.

Given that the Commission on Judicial Performance rarely acts, even in much more egregious cases, it seems unlikely that Judge Johnson, even if found to have violated the law here, would be removed.

The LA Times notes “the number of complaints has been generally rising since 2005, and the percentage of those disciplined has been relatively flat. The commission has recommended yanking judges from the bench only six times since 2005, a sanction reserved for persistent and pervasive misconduct.”

This clearly does not rise to that level, but the judge’s conduct here has made a difficult case even more so, and continues to mount costs for the participants and the voters.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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3 thoughts on “Sunday Commentary: Judicial Accountability is a High Threshold in the Current System”

  1. Davis Progressive

    time to get rid of some of these unaccountable visiting and over the hill judges.  judge mock retired and yet, he’s still working the circuit as well

  2. Napoleon Pig IV

    The threshold for removing incompetent and corrupt judges is so high because lawyers, politicians, and judges circle the wagons and protect each other from accountability. If the hurdle to cleaning up the scum in the “justice” system is not addressed, the system will eventually fail of it’s own weight and rotten core. Sure, there are good judges out there, but there are far, far too many idiots in robes living like fat ticks on the hides of unaware barnyard hosts. Respect for “the law?” How about respect for the people by the law, first? I wish I could say I was optimistic.

  3. MamaBear

    I am not politically versed but I am sure retired/visiting judges are purposefully used in cases like mine to better enable courts to break laws.

    I have total faith in my current attorney but zero trust in this court, the DA, and – at this point the Davis PD. It is clear from the transcripts of our last hearing that either the Davis PD or the (“neutral” :-P) DA passed along confidential information to Eric that I disclosed to them while communicating with Interpol. And I am sure that is what prompted Eric’s sudden ex-parte motions, with Tiffany at his side…. Think about that – they passed along confidential information about me to a man who is on probation for felony stalking and domestic violence. A man I have reported as having raped me to conceive my youngest child.

    Each time I have made efforts to be above board and communicate with the DA; to go about things legally and honestly with all my cards on the table – this is what they have done.

    This outfit is so dishonest and either ignorant or devious – that I feel returning to the US now would not only guarantee my kids as tragic props in Eric’s next suicide attempt but I’d likely be another Sandra Bland. Being racist and murderous would really be small potatoes in the big sack of Yolo at this point.

    I am thoroughly disgusted.

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