Recorder v. Commission on Judicial Performance

Page 56

85 Cal.Rptr.2d 56

72 Cal.App.4th 258, 99 Cal. Daily Op. Serv. 3747,

1999 Daily Journal D.A.R. 4745

The RECORDER, Plaintiff and Respondent, v. COMMISSION ON JUDICIAL PERFORMANCE, Defendant and Appellant.

Nos. A079881, A080466.

Court of Appeal, First District, Division 3, California.

May 19, 1999.

Certified for Partial Publication. ^*

Stephen R. Barnett, Berkeley, Levy, Ram & Olson, Karl Olson, San Francisco, for Plaintiff and Respondent THE RECORDER.

Folger, Levin & Kahn, Samuel R. Miller, Kelvin T. Wyles, San Francisco, COMMISSION ON JUDICIAL PERFORMANCE, Richard G.R. Schickele, Jack Coyle, Roland W. Selman, for Defendant and Appellant COMMISSION ON JUDICIAL PERFORMANCE.

Lewis, D'amato, Brisbois & Bisgaard, James E. Friedhofer, San Diego, Ephraim Margolin, San Francisco, Appearing as counsel for National Union Fire Insurance Company of Pittsburgh, PA and A.I. Management and Professional Liability Claims Adjusters, for Amici Curiae on behalf of Respondent.

PHELAN, J. ^**

These consolidated appeals present important questions of first impression about an initiative measure, commonly known as Proposition 190, which was approved by a large majority of California voters in 1994. The Commission on Judicial Performance (the commission) timely appeals from an order granting a petition for writ of mandate filed in June 1997 by the Recorder, a legal newspaper published in San Francisco, in an effort to compel the commission to disclose how individual commissioners voted in formal disciplinary proceedings concerning the Honorable Jose Angel Velasquez of the Municipal Court of Monterey County, and in all subsequent formal proceedings regarding judicial discipline. The Recorder contends that such disclosure is required by California Constitution, article VI, section 18, subdivision (j), a provision enacted as part of Proposition 190.

The commission claims it acted within its rule-making authority as conferred by California Constitution, article VI, section 18, subdivision (i) ¹--which was also enacted as part of Proposition 190--by adopting procedures allowing it to withhold information about how individual commission members voted with respect to imposition of judicial discipline following "formal proceedings," despite the fact that pursuant to section 18(j) all such proceedings must now be "open to the public." (Ibid.) In fact, the commission has not adopted any specific rule affirmatively authorizing it to withhold this information from the public. Rather, the commission asserts that, even after passage of Proposition 190, it can simply continue its "longstanding historical practice" of revealing only the total vote count.

We conclude the vote of the members on whether or not to impose judicial discipline is such an essential and integral part of the formal proceedings of the commission--perhaps the single most important act a member takes in his or her capacity as such--that it would be plainly unreasonable to accept the commission's interpretation of its authority under sections 18(i) and 18(j). That is, when California voters overwhelmingly approved a requirement that all "proceedings" subsequent to the filing of formal disciplinary charges "shall be open to the public" (§ 18(j)), they must have intended the commission to vote in public or at least to disclose the full results of its vote, including how each commission member voted. We further conclude, however, that--like an intermediate appellate court, or an administrative agency acting in an adjudicative capacity--the commission is not required to conduct its "deliberations" in public. Section 18(j) was clearly not intended as an "open meeting" law but, rather, as a provision relating to adjudicatory proceedings, as to which it is well settled and universally recognized that the judicial "thought process" need not be publicly revealed.

Accordingly, in the published portion of this opinion, we affirm the order directing the commission to disclose the full results of the vote on discipline in Judge Velasquez's case and in all subsequent formal proceedings regarding judicial discipline under section 18(j). In the unpublished portion of the opinion, we consider and reject the commission's argument that the trial court abused its discretion by awarding the Recorder its attorney fees pursuant to Code of Civil Procedure section 1021.5 (hereinafter, section 1021.5). Thus, the order granting the Recorder's request for attorney fees is also affirmed.

I. BACKGROUND

A. The Enactment of Proposition 190 and Implementing Rules.

Proposition 190 was derived from Assembly Constitutional Amendment 46, and placed on the November 8, 1994 ballot by the Legislature. (Assem. Const. Amend. No. 46 (1994-1995 Reg. Sess.) res. ch. 111, No. 7 West's Cal. Legis. Service, p. A-3.) The voters of California approved Proposition 190 at the November 1994 election, and thereby substantially amended sections 8 and 18 of the California Constitution. By its terms, Proposition 190 became operative on March 1, 1995. (§ 18(j); and see Dodds v. Commission on Judicial Performance (1995) 12 Cal.4th 163, 168, fn. 1, 48 Cal.Rptr.2d 106, 906 P.2d 1260.)

Proposition 190 effected several significant changes in the system for imposing judicial discipline in California. It increased the total membership of the commission from nine to eleven, and the number of public members from two to six, so that the public members would constitute a majority. (§ 8(a).) ² It vested the commission with ultimate authority to make censure and removal determinations, subject to discretionary review by the Supreme Court. (§ 18(d).) It created absolute immunity for commission members and staff "from suit for all conduct at any time in the course of their official duties." (§ 18(h).) Most importantly for our purposes, Proposition 190 shifted authority to make rules "for the investigation of judges" and "for formal proceedings" from the Judicial Council to the commission itself (§ 18(i)), ³ and required that "the notice of charges, the answer, and all subsequent papers and proceedings shall be open to the public for all formal proceedings instituted after February 28, 1995." (§ 18(j), italics added.) ⁴

After Proposition 190 took effect, the commission undertook a review of its rules and procedures. Proposed rules were circulated for public comment early in 1996, and revised rules were adopted effective December 1, 1996. In the course of this rule-making proceeding, one of the Recorder's attorneys, Stephen R. Barnett, submitted a letter urging the commission to amend its rules to provide that "in the case of any official action by the [c]ommission, the votes of the individual [c]ommission members shall be made public." This comment was considered by the commission, but rejected, as follows: "One comment was received suggesting that the votes of the individual commission members should be made public. After consideration, the commission determined not to make this suggested modification, noting that disclosure does not appear to be required by Proposition 190 or any other provision of law. It is the commission's policy to release only the tally of total votes in favor of and against public discipline decisions in order to foster determinations unaffected by concerns extraneous to the impartial consideration of matters before the commission." (Italics added.)

B. The Recorder's Pre-Litigation Requests for the Commission's Voting Records.

Asserting a belief that Proposition 190 assured to the general public a right to know how individual commission members cast their votes in formal proceedings for judicial discipline, the Recorder wrote to the commission on September 5, 1996, asking for this information in each post-Proposition 190 case. The Recorder also took its case to its readership with an editorial entitled "Judicial Panel's Votes Should Be Public."

The commission refused to comply with these requests and, in a letter to the Recorder dated September 18, 1996, then Vice Chair Robert C. Bonner explained its refusal as follows: "Proposition 190 did significantly open up the proceedings of the Commission on Judicial Performance through a series of broad, yet very specific changes. Nothing in Proposition 190, however, requires that the votes of individual members be made public, and individual commissioner's votes have never been made public during the commission's history. Because Proposition 190 vested in the commission the authority to promulgate its procedural rules, the issue of what voting information should be released was necessarily left to the commission. [p] Important policy considerations weigh in favor of disclosing the total votes in support of and against commission action, but against disclosing the way each individual commissioner voted. Releasing only the total number of votes in favor and in opposition to the commission decision is intended to safeguard the independent voting of the commissioners. As distinct from the judiciary, the members of the commission do not serve full-time in their adjudicatory function. As the editorial recognizes, judges no longer comprise the majority of the commission's members. Today, the majority are public members and attorneys who may be appearing before the judges under the commission's jurisdiction. Disclosing how individual commissioners voted might well diminish the independence and objectivity so important to the commission's decision-making."

In a letter dated, October 1, 1996, the commission's director and chief counsel, Victoria B. Henley, added: "[T]he breakdown of commission votes according to individual members has never been made public and the commission has determined to continue making public only the total number of votes in support of and against commission action. Moreover, since the tally of votes for and against is the only information which has been made public historically, records have not been maintained by the commission of each...