system of checks and balances is the crucial structural feature of our
democracy. For more than 200 years, Americans have been suspicious of
the accumulation of power in the hands of their government. The
delegation of pervasive power over our lives to the judiciary is no
exception to this rule.
For more than 40 years, the California Commission
on Judicial Performance has performed a critical service in ensuring
that the Code of Judicial Ethics effectively constrains the improper
exercise of judicial power and authority.
The Commission on Judicial Performance has a
specific mission: to protect the public, to enforce rigorous standards
of judicial conduct, and to maintain public confidence in the
integrity and independence of the judiciary. The commission has
authority to privately or publicly discipline a judge, with censure or
removal being the most severe sanctions.
From its inception, California's lawyers have
been instrumental in helping the commission to fulfill its mission.
Lawyers participate in every aspect of the commission's work. The commission itself has two lawyer members appointed by the
governor (currently Marshall Grossman of Los Angeles and myself), and
the commission's investigative staff, its director and, of course,
its counsel, are members of the bar.
Moreover, in a high proportion of the 1,000 cases
the commission handles every year, a lawyer is a witness. Lawyers also
file complaints with the commission and, by and large, complaints by
lawyers are among the most thoughtful and well-reasoned complaints
that we receive.
The subject of complaints against judges is a
touchy one. Perhaps the most important observation to make is that
California's approximately 1,600 judges are as hard-working, ethical
and honest a group of judges as can be found anywhere in the world.
Given the incredible burdens we place on our judges and the
scarce resources we allocate to them, they perform at an extremely
high level. Moreover, despite the legitimate concerns about attracting
and keeping the best possible judges, it should not surprise us that
our judiciary functions so well.
We have established extensive and redundant
procedures to pre-screen judicial candidates and, the current
governor, through the able work of judicial appointments secretary
Burt Pines, has continued the tradition of placing a premium on
appointing exemplary lawyers to these positions of power.
Nonetheless, despite the best efforts of all
concerned to transform only the most suitable lawyers into judges and
despite the best efforts of the Judicial Council, the California
Judges Association, the presiding judges and others to create an
environment conducive to proper judicial conduct, every year a small
number of valid complaints about judicial misconduct come to the
attention of the commission.
These cognizable cases require sensitive and fair
treatment for all concerned. Ironically, the press, which
appropriately scrutinizes judges to be sure that complaints against
citizens are not rushed to judgment, often impatiently chaffs at the
commission for allowing judges too much time consuming due process.
Be that as it may, the commission's rules and
procedures have been carefully devised to ensure due process for the
judicial officers and responsiveness to the complainant.
In no case in our 40-year history has a commission decision
been set aside because of any failure to afford due process to a
On the other hand, in the year 2000, the average
length of time from the commission's receipt of a complaint to
disposition was 3.7 months, including cases that went through the
entire formal process.
The commission also takes steps to protect the
rights of complainants and witnesses, including lawyers. Complaints
may be filed anonymously, and the commission is sensitive to interests
of privacy and freedom from collateral consequences.
Judges are powerful figures in our society and in
the lives of lawyers. Advancing complaints against them is a serious
and important business. However,
if the commission does its job properly, the process will proceed in a
manner which protects the valid interests of lawyers in every aspect
of the proceeding.
Lawyers and former lawyers (i.e., all of the
judges) have a huge stake in the work of the Commission on Judicial
Performance. Indeed, many lawyers spend their entire careers as trial
lawyers attempting to conform their behavior to the expectations of
judicial officers. Rather than allowing public confidence to be eroded
by leaving misconduct unredressed, the commission, through its work,
has strengthened California's judicial system.
The commission needs lawyers' cooperation and
assistance in every phase of our work. For more than 40
years, the excellent working relationship between the
commission and the bar has greatly contributed to the effectiveness of
the Commission on Judicial Performance. To best serve all
Californians, we must ensure that this relationship will continue.
A. Kahn, a partner at Folger Levin & Kahn LLP in San Francisco, is
chair of the California Commission on Judicial Performance.
He also serves as chair of the board of governors of the
Independent System Operator, which oversees California's power grid.