BRUCE W. DODDS, A Judge Of The Superior Court, Petitioner, V.
DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]163[No. S045140. Dec. 21, 1995.]BRUCE W. DODDS, a Judge of the Superior Court, Petitioner, v.COMMISSION ON JUDICIAL PERFORMANCE, Respondent.SUMMARYThe Commission on Judicial Performance found that a superior courtjudge had observed a colleague deflate a tire on a van that had been parkedin the colleague's assigned parking space; that he had declined to reportwhat he had observed, even after it appeared the colleague lied about theincident; that, when approached by a sheriff's department detective about theincident, he had initially refused to give a statement and suggested that hisstaff also refuse to talk; and that he had given a statement only after hiscolleague had made a statement. The commission also found that on fouroccasions the judge had engaged in rudeness and prejudgment in the handling of cases, and that on one occasion he had made an offensive remark inchambers about two lawyers who had appeared before him. The commissionfound that these acts constituted wilful misconduct in office and conductprejudicial to the administration of justice that brought the judicial officeinto disrepute. It recommended that the judge be publicly censured.The Supreme Court rejected the recommendation of public censure. Thecourt held that the commission's findings of fact were supported by clearand convincing evidence. However, contrary to the commission's conclusionof law, the court held that the judge's interference with a law enforcementinvestigation constituted only prejudicial conduct and not wilful misconduct. The court further held that the commission was correct in finding thatthe judge's rudeness and prejudgment in the handling of cases on fouroccasions constituted prejudicial conduct. As to the one offensive remark,however, the court lacked the power to impose discipline, since the remarkwas made more than six years before the commencement of the judge'scurrent term, and, under Cal. Const., art. VI, § 18, former subd. (c), theSupreme Court is limited to sanctioning "action occurring not more than 6years prior to the commencement of the judge's current term." Finally, thecourt held, cases in which public censure has been imposed have involvedmore serious misconduct than that involved in the present proceeding, and
164DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]the record was replete with evidence that the judge was a talented one whowas often sought for his ability to settle difficult cases. Moreover, hisinterference in the investigation of his colleague, though improper, was notmotivated by a desire to conceal the truth. Public censure would not furtherthe purpose of judicial performance proceedings, which is not to punisherrant judges but to protect the judicial system and those subject to theawesome power that judges wield. (Opinion by The Court. Separate concurring and dissenting opinion by Baxter, L, with George, J., concurring.)HEADNOTESClassified to California Digest of Official Reports(1)Judges § 6.4—Removal, Censure, and Other Discipline—Proceedings—Review by Supreme Court.—In reviewing the recommendations of the Commission on Judicial Performance, the Supreme Court'sconcern is only with the incidents that the commission has sustained.With respect to those incidents, the court reviews the record independently, cognizant that there must be proof by clear and convincingevidence sufficient to sustain a charge to a reasonable certainty. Nevertheless, the court gives special weight to factual determinations in thereport of the masters, as the masters had the advantage of observing thedemeanor of the various witnesses. In addition, in recognition of thecommission's expertise, the court accords great weight to the commission's conclusions of law. It is particularly deferential to the commission when it has acted unanimously. Finally, based on the court'sfindings of fact and conclusions of law, the court determines whatdiscipline, if any, is appropriate.(2)Judges § 6.4—Removal, Censure, and Other Discipline—Proceedings—Evidence—Character Evidence as Cumulative.—In proceedings concerning alleged misconduct by a superior court judge, themasters and the Commission on Judicial Performance did not err inrefusing to consider the testimony and declarations of a number ofwitnesses who had favorable impressions of the judge, though they hadnot observed any of the specific incidents that were the subject of theinquiry. The exclusion of this evidence was well within the discretionof the masters and the commission. The masters permitted many character witnesses to testify in the judge's favor and reasonably determined that additional testimony of this kind would be cumulative.
DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]165(3) Judges § 6.2—Removal, Censure, and Other Discipline—Grounds—Wilful Misconduct: Words, Phrases, and Maxims—Wilful Misconduct.—Under Cal. Const., art. VI, § 18, former subd. (c), theSupreme Court may censure a judge for wilful misconduct in office orconduct that is prejudicial to the administration of justice that bringsthe judicial office into disrepute. "Wilful misconduct" comprises threeelements: (1) unjudicial conduct, (2) committed in bad faith, (3) by ajudge acting in his or her judicial capacity. Whether conduct is unjudicial is determined with reference to the California Code of JudicialConduct. "Bad faith" means the judge intentionally committed acts thathe or she knew or should have known were beyond a judge's lawfulpower, or acts within the lawful power of a judge that neverthelesswere committed for a purpose other than the faithful discharge ofjudicial duties. "Acting in his judicial capacity" means the judge isperforming one of a judge's adjudicative or administrative duties. Indetermining whether the judge is acting in a judicial capacity, dueweight is given to the location of the conduct. Further, if the judgeuses, or attempts to use, his or her authority as a judge for improperends, regardless of location, the judge is considered to be acting in ajudicial capacity.(4) Judges § 6.2—Removal, Censure, and Other Discipline—Grounds—Prejudicial Conduct: Words, Phrases, and Maxims—PrejudicialConduct.—Unjudicial conduct that does not rise to the level of wilfulmisconduct, either because of a lack of bad faith or because the judgewas not acting in a judicial capacity, may nevertheless constituteprejudicial conduct. Prejudicial conduct refers to conduct that wouldappear to an objective observer to be not only unjudicial but prejudicialto public esteem for the judicial office. The conduct, however, need notbe notorious; it is enough that the conduct be known to those membersof the public who observed it.(5a, 5b) Judges § 6.2—Removal, Censure, and Other Discipline—Grounds—Prejudicial Conduct—Interference With Law Enforcement Investigation.—A superior court judge who observed a colleague deflate a tire on a van that had been parked in the colleague'sassigned parking space; who declined to report what he had observed,even after it appeared the colleague lied about the incident; who, whenapproached by a sheriff's department detective about the incident,initially refused to give a statement and suggested that his staff alsorefuse to talk; and who only gave a statement after his colleague hadmade a statement engaged in prejudicial conduct, but not wilful misconduct. His interference in the investigation was unjudicial. It also
166DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]constituted bad faith, since the interference was intentional and heshould have known that it was beyond his lawful power as a judge.However, he was not acting in a judicial capacity when he interfered,since he was not performing one of the functions generally associatedwith his position as a judge, in that when he advised his staff not totalk, he was giving advice as a witness to an event unrelated to thework of the court. Though he met the detective at the courthouse, thatwas simply a convenient meeting place selected by the detective.(6) Judges § 6.2—Removal, Censure, and Other Discipline—Grounds—Bad Faith Conduct—Actual Malice: Words, Phrases, and Maxims—Actual Malice.—The "actual malice" that will support a findingthat a judge acted in bad faith connotes only specific intent, not hate orill will.(7) Judges § 6.2—Removal, Censure, and Other Discipline—Grounds—Prejudicial Conduct—Rudeness and Prejudgment of Cases.—Asuperior court judge's rudeness and prejudgment in the handling ofcases, as exhibited on four occasions, constituted prejudicial conduct.Interrupting and yelling loudly and angrily at counsel and a litigant, aswell as telling a joke that suggested bias, was clearly unjudicial, and itbrought disrepute upon the judicial office. The judge's contention thathis "assertive" judicial style was desirable in that it helped him effectsettlements betrayed an understanding of the judicial role that placedtoo much emphasis on the efficient disposition of cases and too littleemphasis on the dignity of litigants.[Disciplinary action against judge on ground of abusive or intemperate language or conduct toward attorneys, court personnel, or parties toor witnesses in actions, and the like, note, 89 A.L.R.4th 278.](8) Judges § 6.4—Removal, Censure, and Other Discipline—Proceedings—Limitation to Conduct Occurring Less Than Six Years Before Current Term.—The Supreme Court, in reviewing a disciplinaryrecommendation of the Commission on Judicial Performance, lackedpower to impose a sanction against a superior court judge based on aremark he allegedly made more than six years before the commencement of his current term. Under Cal. Const., art. VI, § 18, former subd.(c), the Supreme Court may "censure or remove a judge for actionoccurring not more than 6 years prior to the commencement of thejudge's current term." Although his current term began after disciplinary proceedings began, the constitutional provision is not a classic
DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]167statute of limitations—it does not place a limit on when an action orproceeding may be commenced. Rather, it places a limit on the totaltime that may elapse from the occurrence of an incident to the imposition of discipline based on that incident.[See 2 Witkin, Cal. Procedure (3d ed. 1985) Courts, § 32.](9) Judges § 6—Removal, Censure, and Other Discipline—Interference With Law Enforcement Investigation, Rudeness, and Prejudgment of Cases—Propriety of Public Censure.—The SupremeCourt rejected the Commission on Judicial Performance's recommendation of public censure concerning a superior court judge who hadengaged in prejudicial conduct, including interfering in a law enforcement investigation of a colleague, rudeness, and the appearance of bias.Cases in which public censure has been imposed have involved moreserious misconduct, and the record was replete with evidence that thejudge was a talented one who was often sought for his ability to settledifficult cases. Moreover, his interference in the investigation of hiscolleague, though improper, was not motivated by a desire to concealthe truth. Public censure would not further the purpose of the judicialperformance proceedings, which is not to punish errant judges but toprotect the judicial system and those subject to the awesome power thatjudges wield.COUNSELLewis, D'Amato, Brisbois & Bisgaard, Robert F. Lewis, Gordon J. Calhoun,Douglas R. Reynolds and James E. Friedhofer for Petitioner.Daniel E. Lungren, Attorney General, Marc E. Turchin and David F.Glassman, Deputy Attorneys General, for Respondent.OPINIONTHE COURT.-—Judge Bruce W. Dodds of the Santa Barbara CountySuperior Court has petitioned for review of the recommendation of theCommission on Judicial Performance (Commission) that he be publiclycensured for acts that the Commission found to constitute "wilful misconduct in office" and "conduct prejudicial to the administration of justice that
168DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]brings the judicial office into disrepute." (See Cal. Const., art. VI, § 18,subd. (d) [formerly subd. (c)];1 Cal. Rules of Court, rule 919(b).)The bases for the Commission's recommendation are 1) that petitionerobstructed a law enforcement investigation, 2) that petitioner "has frequentlygiven the appearance of rudeness and prejudgment in his handling of cases,"and 3) that petitioner made an offensive remark in chambers about twolawyers who had appeared before him. As set forth below, we agree with theCommission's findings of fact, but disagree with some of the Commission'sconclusions of law. We reject the Commission's recommendation of publiccensure.I.SCOPE OF REVIEWThe Commission's notice of formal proceedings, dated January 27, 1994,and amended July 26, 1994, specified six counts and thirteen separateincidents of misconduct. (1) Our concern is only with the incidents thatthe Commission has sustained. (Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 784, fn. 5 [119 Cal.Rptr. 841, 532 P.2d 1209]{Spruance).) With respect to those incidents, we review the record independently, cognizant that there must be "proof by clear and convincing evidencesufficient to sustain a charge to a reasonable certainty." (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 275 [110 CaLRptr. 201,515 P.2d 1] (Geiler); Doan v. Commission on Judicial Performance (1995)11 Cal.4th 294, 313 [45 Cal.Rptr.2d 254, 902 P.2d 272] (Doan); Gonzalez v.Commission on Judicial Performance (1983) 33 Cal.3d 359, 365 [188CaLRptr. 880, 657 P.2d 372] (Gonzalez).) Nevertheless, we give "specialweight" to factual determinations in the report of the masters, as the mastershad the advantage of observing the demeanor of the various witnesses.(Gubler v. Commission on Judicial Performance (1984) 37 Cal.3d 27, 34[207 CaLRptr. 171, 688 P.2d 551] (Gubler); Wenger v. Commission onJudicial Performance (1981) 29 Cal.3d 615, 623 [175 CaLRptr. 420, 630P.2d 954] (Wenger).) In addition, in recognition of the Commission's expertise, we accord "great weight" to the Commission's conclusions of law.(Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297, 314[267 CaLRptr. 293, 787 P.2d 591, 87 A.L.R.4th 679] (Kennick); Wenger,supra, 29 Cal.3d at p. 623.) We are particularly deferential to the Commission when it has acted unanimously. (Wenger, supra, 29 Cal.3d at p. 623.)'The voters approved Proposition 190 at the November 8, 1994, election, thereby substantially amending article VI, section 18 of the California Constitution. By its terms, Proposition190 became operative on March 1, 1995. Because petitioner's conduct preceded March 1,1995, we apply the version of the Constitution that existed prior thereto.
DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]169Finally, based on our findings of fact and conclusions of law, we determinewhat discipline, if any, is appropriate. (Gubler, supra, 37 Cal.3d at p. 34;Geiler, supra, 10 Cal.3d at p. 276.)II.FAIRNESS OF COMMISSION PROCEEDINGSBefore turning to the facts underlying the various charges and the meritsof the Commission's conclusions of law, we address petitioner's thresholdarguments. First, petitioner asserts that some members of the Commissionwere likely biased against him because of collateral litigation that he broughtagainst the Commission in an effort to preserve the confidentiality of thisproceeding. We rejected this same argument in Adams v. Commission onJudicial Performance (1995) 10 Cal.4th 866, 880-884 [42 Cal.Rptr.2d 606,897 P.2d 544] {Adams), and we need not repeat our discussion here. In thecourse of adjudicative proceedings, decisionmakers frequently make preliminary or collateral determinations against a party. Absent persuasive evidence of actual bias, there is no reason to assume that these decisionmakersthereby lose their objectivity. {Ibid.; see also Withrow v. Larkin (1975) 421U.S. 35, 56 [43 L.Ed.2d 712, 728-729, 95 S.Ct. 1456].)(2) Second, petitioner cites as error the refusal on the part of the mastersand the Commission to consider the testimony or declarations of a number ofwitnesses who had favorable impressions of petitioner, though they had notobserved any of the specific incidents that were the subject of the inquiry.The exclusion of this evidence was well within the discretion of the mastersand the Commission. (Cal. Rules of Court, rule 909; Evid. Code, § 352.) Themasters permitted many character witnesses to testify in petitioner's favorand reasonably determined that additional testimony of this kind would becumulative.In an effort to compensate for the exclusion of these witnesses, petitionerhas submitted to this court 64 letters and declarations from members of thebar. These letters and declarations generally praise petitioner's skills as ajudge, particularly noting his ability to settle difficult cases by getting to theheart of the dispute and speaking frankly with counsel and the parties.Nearly all of these declarants qualify their praise of petitioner, using suchwords as "tough," "short," "abrupt," "direct," "rude," "impatient," and"gruff." Though these terms are generally used in the context of describingpetitioner's reaction when counsel is unprepared, many declarants opinethat petitioner should exercise more self-restraint. Much of this evidenceis cumulative or of little probative value. We decline to take it intoconsideration.
170DODDS v. COMMISSION ON JUDICIAL PERFORMANCE12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995]III.FINDINGS OF FACTWe conclude that clear and convincing evidence supports the Commission's findings of fact. As in Fitch v. Commission of Judicial Performance(1995) 9 Cal.4th 552, 556 [37 Cal.Rptr.2d 581, 887 P.2d 937] (Fitch),"[b]ecause this case involves public censure rather than outright removal ofa judge, we need not explore in detail the extensive factual matrix underlying each of the Commission's findings." The following summary adequatelystates our findings with respect to petitioner's misconduct.A. Interference in a Law Enforcement InvestigationOn April 21, 1993, petitioner and some members of his staff, whenreturning from lunch, observed another superior court judge remove the airfrom the tire of a van that was parked in that judge's assigned parking spacein the courthouse parking lot. Petitioner did not try to dissuade his colleaguefrom deflating the van's tire. The van turned out to be registered to adisabled person. For four weeks, petitioner did nothing to bring the incidentto the attention of appropriate authorities. Even after press reports indicatedthat the judge who had deflated the tire had denied responsibility, petitionerdid not publicly disclose his knowledge about the incident. Petitioner did,however, discuss the matter with the presiding judge of the court as well asthe court's research attorney. In those discussions, petitioner expressedconcern that the responsible judge had apparently denied involvement.Petitioner also said that he intended to tell the truth if asked.On May 19, 1993, a detective from the Santa Barbara County Sheriff'sDepartment came to petitioner's courtroom while court was in session andspoke to the bailiff, who took a note to petitioner. Through the bailiff,petitioner told the detective that he did not want to make a statementregarding the incident. Later, during the noon recess, petitioner met thedetective in chambers and repeated that he did not want to make a statement,explaining that he was "too close." Petitioner also suggested to his staff thatthey decline to make statements, at least until the detecti
164 DODDS v. COMMISSION ON JUDICIAL PERFORMANCE 12 Cal.4th 163; 48 Cal.Rptr.2d 106; 906 P.2d 1260 [Dec. 1995] the record was replete with evidence that the judge was a talented one who was often sought for his ability to settle difficult cases. Moreover, his interference in the
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12 Dodds 1928. 13 Dodds does the same for “the ‘indistinguishable identity’ of the soul with its divine ground” in Numenius, see Dodds 1960:22–23. 14 Dodds 1929b:90. 15 Ibid. 16 Dod
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