STATE OF CALIFORNIA BEFORE THE COMMISSION ON JUDICIAL .
STATE OF CALIFORNIABEFORE THE COMMISSION ON JUDICIAL PERFORMANCEINQUIRY CONCERNING JUSTICEJEFFREY W. JOHNSON,No. 204I.DECISION AND ORDER REMOVINGJUSTICE JEFFREY W. JOHNSONFROM OFFICEINTRODUCTIONThis disciplinary matter concerns Justice Jeffrey W. Johnson of theCalifornia Court of Appeal, Second Appellate District, Division One. JusticeJohnson was notified of the commission’s investigation in July 2018. A notice offormal proceedings was filed on January 4, 2019. The notice was amendedthree times to add charges. A third amended notice was filed on June 18, 2019.Justice Johnson was charged with 10 counts, which with subparts contain62 allegations of misconduct. The charges involve sexual misconduct toward 17women he encountered at the courts where he worked and at professionalfunctions (Counts One, Two, Three, Four, Five, Seven, and Nine), including theunwanted touching of several women; disparaging women with whom he works(Count Ten); poor demeanor toward those with whom he works (Count Six); andmultiple instances of undignified conduct while under the influence of alcohol,which demeaned the judicial office (Count Eight).The California Supreme Court appointed Hon. Judith L. Haller, AssociateJustice of the Court of Appeal, Fourth Appellate District, Division One; Hon. LouisR. Hanoian, Judge of the San Diego County Superior Court; and Hon. William D.Lehman, Judge of the Imperial County Superior Court, as special masters toconduct an evidentiary hearing and prepare a report to the commission of theirfindings of fact and conclusions of law.1
The special masters presided over 17 days of testimony, with over 100witnesses and 120 admitted exhibits, and multiple discovery motions. Thehearing took place between August 5 and 27, 2019, with an additional day oftestimony on September 11, 2019, and closing arguments on October 8, 2019.The masters filed their report to the commission on January 3, 2020. Thecommission heard oral argument, presided over by then-chairperson Nanci E.Nishimura, Esq., on May 7, 2020.The masters found that the allegations in Count One (in part), Two (inpart), Three, Four (in part), Five, Six, Seven (in part), Eight (in part), Nine, andTen were proven by clear and convincing evidence. They concluded that JusticeJohnson engaged in 15 instances of prejudicial misconduct (comprised of 42proven allegations), as well as 5 instances of improper action (comprised of 5proven allegations).Based on our independent review of the record, we conclude that thefindings of fact in the masters’ report are supported by clear and convincingevidence, and we adopt them in their entirety. In this decision, we summarizethe factual findings. The findings include that Justice Johnson was, at times,intentionally dishonest in his testimony.We adopt the masters’ legal conclusions as to most of the allegations, butrespectfully reach our own independent legal conclusions as to certainallegations. We find that Justice Johnson engaged in 18 instances of prejudicialmisconduct.In their report, the masters stated:The proven allegations establish Justice Johnsonlacked personal boundaries; engaged in unwantedtouching of several women; attempted to use theprestige of the judicial office to create personalrelationships with women; and engaged in ongoingimproper touching and sexually related commentstoward his colleague, Court of Appeal Justice VictoriaChaney.2
Justice Johnson’s pattern of conduct toward thesewomen reflects ethical lapses that undermine thepublic’s trust in the judicial process and erodes theconfidence we ask the public to place in our individualjudges. These lapses are compounded by JusticeJohnson’s failure to take responsibility for many of hisactions and to manifest insight into his behavior. Wefind particularly concerning Justice Johnson’s actionstowards women who had recently graduated from lawschool; were in the early stages of their legal careers;and welcomed the opportunity to establish professionalcontacts with a Court of Appeal justice. Additionally, theevidence established the most serious misconductoccurred when Justice Johnson was intoxicated,impairing both his judgment and his recollection ofevents.In making these findings, we have carefully considered,but largely rejected, Justice Johnson’s defenses,including that (1) witness memories of the relevantevents were exaggerated or misconstrued becausewidespread negative publicity and unsubstantiatedgossip caused many of the women to rethink andoverstate their encounters; and (2) many of thewitnesses (including Justice Chaney) should not bebelieved because they did not tell him his conduct wasunwelcome or report his actions until many years later.We find that, by engaging in sexual misconduct, Justice Johnson severelyundermined public esteem for the integrity of the judiciary. Treating womendisrespectfully, including unwanted touching and making inappropriate sexualcomments, reflects a sense of entitlement completely at odds with the canons ofjudicial ethics and the role of any judge. Sexual misconduct has no place in thejudiciary and is an affront to the dignity of the judicial office.Justice Johnson refused to admit his most serious sexual misconduct.Rather than take responsibility for his offensive behavior, he maligned thevictims, including his colleague Justice Chaney, and accused them of testifying3
falsely. But it is Justice Johnson whom the masters found, and we find, testifieduntruthfully in many instances.As to the sexual misconduct Justice Johnson does admit, he claimed thathe did not know it was wrong. At his appearance before the commission, heattributed the misconduct he has admitted to his being “friendly.” But friendlinessdoes not extend to sexualized behavior. Judges have been on notice for manyyears that men and women alike are entitled to a professional workplace freefrom inappropriate and unwelcome conduct, particularly from judges, who areheld to a higher standard of behavior. Judges, including Justice Johnson,receive ethics training that reinforces this concept. In addition, Justice Johnsonwas personally cautioned about some of his inappropriate conduct. He failed toheed these warnings and to comport himself in a professional manner befittinghis position.At his appearance before the commission, Justice Johnson told commission members that he was raised to treat everyone “with respect and dignity.”Yet he failed to treat everyone at the appellate court with dignity and respect, notonly by engaging in sexual misconduct, but also by displaying poor demeanor tocoworkers and making disparaging remarks about colleagues, and by becomingintoxicated and using the courthouse to socialize late at night, sometimes in thepresence of courthouse custodians and court personnel who were working there.Justice Johnson’s misconduct has severely tarnished the esteem of thejudiciary in the eyes of the public. Given his persistent denials of seriousmisconduct, we do not have confidence that he can reform, as he has notconveyed that he recognizes the extent of his wrongdoing. Further, given hislack of candor during this proceeding, we do not have confidence that he has thefundamental qualities of honesty and integrity required of a judge. Consequently,in order to fulfill our mandate of protecting the public, enforcing high judicialstandards, and preserving public respect for the judiciary, we remove JusticeJohnson from office.4
Justice Johnson is represented by Paul S. Meyer, Esq., Reginald A. Vitek,Esq., Willie L. Brown, Jr., Esq., and Thomas J. Warwick, Jr., Esq. Theexaminers for the commission are acting commission trial counsel EmmaBradford, Esq., trial counsel Mark A. Lizarraga, Esq., and commission assistanttrial counsel Bradford Battson, Esq.II. LEGAL STANDARDSA. Three Levels of Judicial MisconductWillful misconduct consists of unjudicial conduct, committed in bad faith, bya judge acting in a judicial capacity. (Broadman v. Commission on JudicialPerformance (1998) 18 Cal.4th 1079, 1091.)Prejudicial misconduct is “conduct prejudicial to the administration ofjustice that brings the judicial office into disrepute.” (Cal. Const., art. VI, § 18,subd. (d).) The California Supreme Court has defined prejudicial misconduct aseither “willful misconduct out of office, i.e., unjudicial conduct committed in badfaith by a judge not then acting in a judicial capacity” or “conduct which a judgeundertakes in good faith but which nevertheless would appear to an objectiveobserver to be not only unjudicial conduct but conduct prejudicial to publicesteem for the judicial office.” (Broadman, supra, 18 Cal.4th at pp. 1092-1093.)The subjective intent or motivation of the judge is not a significant factor inassessing whether prejudicial conduct has occurred. (Adams v. Commission onJudicial Performance (1995) 10 Cal.4th 866, 878 (Adams II).)Improper action occurs when the judge’s conduct violates the canons ofthe California Code of Judicial Ethics, but an objective observer aware of thecircumstances would not deem the conduct to have an adverse effect on thereputation of the judiciary. (Inquiry Concerning Ross (2005) 49 Cal.4th CJPSupp. 79, 89.) A judge may be removed from office or censured based on willfulmisconduct or prejudicial misconduct, but not improper action. (Cal. Const., art.VI, § 18, subd. (d).)5
Only prejudicial misconduct and improper action are relevant in this matterbecause the examiner did not argue, and the special masters did not find, thatany of Justice Johnson’s misconduct constitutes willful misconduct, based on theassertion that it did not involve him acting in his judicial capacity. The mastersaccepted the parties’ agreement that Justice Johnson was not acting in a judicialcapacity in connection with the allegations. The commission accepts thisagreement for purposes of this decision only, but notes that certain instances ofmisconduct occurred in the courthouse, while Justice Johnson was working withothers on judicial matters, and other instances of misconduct occurred while hewas at professional events in his capacity as an appellate justice.B. Burden of ProofThe examiner has the burden of proving the charges by clear andconvincing evidence. (Broadman, supra, 18 Cal.4th at p. 1090.) “Evidence of acharge is clear and convincing so long as there is a ‘high probability’ that thecharge is true. [Citations.]” (Ibid.) Clear and convincing evidence is so clear asto leave no substantial doubt. It is sufficiently strong to command theunhesitating assent of every reasonable mind, but need not establish the factsbeyond a reasonable doubt. (Ibid.)C. Standards Regarding Masters’ Findings and ConclusionsThe factual findings of the masters are given special weight because themasters have “the advantage of observing the demeanor of the witnesses.”(Broadman, supra, 18 Cal.4th at p. 1090.) The legal conclusions of thecommission are given great weight because of the commission’s expertise inevaluating judicial misconduct. (Ibid.) The commission may determine, however,that it is appropriate to disregard the factual findings and the legal conclusions ofthe special masters and make its own determinations based on its own independent review of the record. (See Inquiry Concerning Clarke (2016) 1 Cal.5thCJP Supp. 1, 7.)6
III. FINDINGS OF FACT AND CONCLUSIONS OF LAWBACKGROUNDJustice Johnson has been a judge for 19 years. He attended DukeUniversity, studied at Oxford University as a Duke Scholar, and graduated fromYale Law School in 1985. He worked as an attorney in private practice from1985 to 1989 and was an Assistant United States Attorney from 1989 to 1999. In1999, he was selected as a United States Magistrate Judge for the CentralDistrict, where he served until his appointment in 2009 to the Court of Appeal,Second District, Division One.COUNT ONE—Sexual harassment of Justice ChaneyJustice Johnson was charged with a pattern of conduct toward hiscolleague on the bench, Justice Victoria Chaney, that was unwelcome,undignified, discourteous, and offensive, and would reasonably be perceived assexual harassment or gender bias (counts 1A-1J). The alleged misconductinvolved multiple instances of unwanted touching and other sexual misconduct.A. Proven charges found to constitute misconductThe masters found, based on clear and convincing evidence, that JusticeJohnson, while at court, asked Justice Chaney to have an affair with him aftershe had already declined his request (count 1C), said he wanted to “squeeze”her “titties” to make her “feel better” and then squeezed one of her breasts in thecourthouse hallway (count 1D), repeatedly touched her breasts while hugging her(count 1E), occasionally patted her buttocks in the courthouse hallway (count1F), commented on her nipples (count 1G), and warned her not to report him forsexual harassment (count 1J). They also found that, when they were on a worktrip, he entered her hotel room uninvited (count 1B), and, at a restaurant, impliedthat she should not report him for sexual harassment (count 1H).7
1. Findings of FactCount 1B: Entering hotel room uninvitedJustices Johnson and Chaney attended the National Judicial College inReno in 2010. They had dinner together each evening. During these dinners,Justice Johnson drank alcohol and appeared to be intoxicated. Justice Chaneytestified that, during dinner the first night, Justice Johnson asked her if she everhad an affair. She perceived this as a “come on.” When they returned to thehotel, he escorted her back to her room and then followed her into her roomuninvited, which made her uncomfortable. Justice Chaney testified that JusticeJohnson did not say anything inappropriate, but he touched her shoulder, arm,and back, which made her feel uncomfortable. Although she felt uncomfortablethe first night, she continued to spend time with Justice Johnson because theywere colleagues on a court together, and were going to be working together forthe foreseeable future. Justice Chaney also testified that, after subsequentdinners together, Justice Johnson again entered her room by walking closebehind her when she opened her hotel room door. He left when she asked himto, but she felt upset and uncomfortable because she “felt that he wanted sex.”Justice Chaney’s testimony about what occurred the first night wascorroborated by the testimony of her best friend, Emily Bernardis, whom themasters viewed as an “open and honest witness.” Bernardis testified thatJustice Chaney called her from her hotel room and told her that Justice Johnsonhad been drinking and “pushed his way into the room,” which made JusticeChaney “freaked out” and “very upset.” Justice Chaney’s testimony was alsocorroborated by Daniel Alexander (her friend and later her research attorney),and Raphael Gunner (her private yoga instructor of 17 years), each of whomtestified that she told them about the incident. Gunner testified that JusticeChaney told him that, one evening, Justice Johnson pressured her to let him intoher room, that it was obvious to her that he wanted to have a sexual encounterwith her, and that she had to firmly keep him from entering the room. Alexander8
testified that, one year after the trip, Justice Chaney told him that she had dinnerwith Justice Johnson in Reno and that he had pushed into her hotel room, andshe could not get him out. The masters found that, even though the testimony ofBernardis and Gunner did not precisely match Justice Chaney’s testimony, itsupported the fact that Justice Johnson came into Justice Chaney’s hotel roomuninvited for at least a few minutes on one night, and the witnesses confirmedthe essence of what occurred. The masters also concluded that JusticeChaney’s clear explanation of the incident was believable and consistent withother evidence showing Justice Johnson’s overly friendly and overly familiarconduct with women, particularly when he is drinking alcohol.The masters determined, however, that other details in Justice Chaney’stestimony—that Justice Johnson touched her when he came into her hotel roomthe first night, and that he came into her room uninvited on additional nights afterthe first night—were not alleged in the notice, and were not disclosed toBernardis, Gunner, Alexander, commission staff, or Administrative PresidingJustice Elwood G. Lui, to whom she reported Justice Johnson’s conduct inconnection with a workplace investigation conducted in July 2018 by outsidecounsel at the court’s request. As a result, the masters declined to credit JusticeChaney’s testimony on these points, and found that the truth of what actuallyhappened in Reno was somewhere in between each party’s version of theevents.Justice Johnson denied propositioning Justice Chaney or going to herroom at any time during the trip, and said that he did not know where her roomwas located. He testified that her testimony that he came to her room was an“unequivocal lie.” Justice Johnson also denied being intoxicated the firstevening, claiming that he had one or two beers and that this matter is “full ofstereotypes.” The masters found Justice Johnson’s denials about what occurredthe first evening in Reno to be “untrue” and that his testimony reflected“intentional misrepresentations.”9
Justice Johnson asserted that Justice Chaney should not be believedbecause she testified incorrectly regarding certain details about the trip, such asthe name of the hotel, the precise date of the event, and whether she had renteda car. Justice Chaney testified that she rented a car when they arrived in Reno,that she gave Justice Johnson a ride to their hotel, and that they stopped at aconvenience store where she purchased Diet Cokes and he purchased a bottleof liquor of some sort. Justice Johnson called her testimony that she drove himin the rental car, and that he stopped to buy liquor, a “total fabrication.” Heproduced copies of expense reimbursement requests he submitted in 2010 thatshow that he paid 45 for a taxi he and Justice Chaney shared between the hoteland the judicial college each day, and he testified that Justice Chaney paid for ataxi in the other direction each day. He asserted that this proved they used taxisto travel to the judicial college, not Justice Chaney’s rental car. He also providedevidence that the program ended at 4:00 p.m. the last day and that his flight wasat 5:30 p.m., so they would not have had time to return the rental car before hisflight.The masters agreed that some of Justice Chaney’s testimony was not fullysubstantiated and/or conflicted with written records of the trip, but they concludedthat this was the result of her “misremembering, rather than any intentionalmisrepresentation.” They stated: “It makes sense that Justice Chaney would notremember the details of a trip that occurred more than nine years before shetestified, but that she would recall an unsettling event—the fact that JusticeJohnson came into her hotel room with some suggestion that he would like tocarry things further.”The masters stated that this conclusion is consistent with the opinions ofDr. Mark Kalish, a forensic psychiatrist who testified on Justice Johnson’s behalfregarding memory and how it is impacted by internal factors (e.g., an individual’spersonality, former experiences, and perspective), and external factors (e.g., thepassage of time, “social contagion,” which is the desire to be part of a group10
dynamic, and confirmation bias). They noted that Dr. Kalish has not conductedresearch in the area of sexual harassment. With regard to Justice Johnson’sassertion that factors identified by Dr. Kalish as impacting witness memories arepresent in this matter, the masters stated: “In evaluating testimony, we havecarefully considered these views and found some relevant and othersinapplicable. For example, we agree that in the case of an emotionally traumaticevent, witnesses accurately recall the ‘gist’ of the encounter, even if they aremistaken regarding details. Likewise, because the passage of time is a
Based on our independent review of the record, we conclude that the findings of fact in the masters’ report are supported by clear and convincing evidence, and we adopt them in their entirety. In this decision, we summarize the factual findings. The findings include that Justice Johnson was, at times, intentionally dishonest in his testimony.
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