When Robert H. Furey Jr. ran for Los Angeles municipal judge two years ago, the voters lacked an important piece of information about him.
Furey, a Catalina Justice Court judge, had been under investigation by the state Commission on Judicial Performance for 22 months for misconduct, including the repeated jailing of a woman who had filed a complaint about him.
Furey lost the election, and eight days later the commission recommended to the state Supreme Court that he be removed from the bench.
However, until the panel's recommendation was announced, the investigation of Furey had been secret.
Few government agencies in California are as shrouded in secrecy as the agency that handles misconduct complaints by lawyers and the public against the state's 1,406 judges.
Made up of five judges, two lawyers and two non-lawyers, the commission may privately admonish a judge or recommend censure or removal to the Supreme Court, which all but twice has accepted the agency's recommendation.
Nine judges have been removed or forced to retire and 16 have been publicly censured in the commission's 27-year history.
Established in 1961 as the first agency in the country specifically created to investigate judicial misconduct, California's commission was a trailblazer. By 1981, every state had a similar commission.
But now, according to many experts in the field of judicial discipline, California's commission is no longer in the vanguard in an area of growing importance--public access.
In 24 states, disciplinary proceedings are open to the public as soon as "probable cause" of misconduct is established and formal proceedings are instituted.
"More and more states are recognizing that there is a strong public interest in having public access to these proceedings," said Jeffrey M. Shaman, director of the nonprofit Chicago-based Center for Judicial Conduct Organizations, a clearinghouse for disciplinary groups run by the American Judicature Society.
In California, disciplinary hearings have always been closed. Once a complaint is found to have merit and formal charges are filed, a fact-finding hearing is held before "special masters," judges appointed by the Supreme Court. The commission then reviews the evidence gathered by the masters and may call witnesses of its own.
Most cases have remained secret even after the commission completed its work, since, as a rule, only cases that result in disciplinary recommendations to the Supreme Court can be made public. Otherwise, even the complaining party is told only that "appropriate action" has been taken.
In 1984, the Supreme Court--the final authority on commission procedures--further restricted information about the commission's work. The court ordered that censure recommendations remain confidential for 30 days or until the judge has had an opportunity to respond.
Proposition 92, a constitutional amendment passed by the voters on Nov. 8, was originally designed to open commission hearings. But it was so watered down through negotiations with judicial organizations that it will make public only a minuscule number of cases.
Proponents of openness say secrecy in judicial disciplinary proceedings is harmful for three reasons:
- Voters are deprived of information they need to make informed choices.
- Judges are accorded special protections denied to other citizens.
- Citizens are unable to evaluate the performance of the commission itself.
On the other hand, judges say confidentiality, which is mandated by the state Constitution, is needed to preserve public respect for the judiciary as a system and to protect jurists from unfounded charges.
Special Considerations Defended
Retired Los Angeles Superior Court Judge Jerry Pacht, a former commission member, concedes that judges get more protection than ordinary citizens accused of wrongdoing but believes that it is justified.
"I think (judges) get more than due process. No other class of miscreants gets that," Pacht said. "They (judges) don't deserve that. The system does."
Judges also point out that they make convenient scapegoats and are particularly vulnerable to complaints from citizens who are unhappy about their rulings.
Since they must run for reelection, judges are understandably sensitive about criticism. In most cases, censure by the disciplinary commission has virtually been the equivalent of removal.
Only four of 16 judges have managed to withstand the stigma of public censure; all had unusually strong community support. The rest either retired or were defeated at the next election.
Although judges tend to regard the commission as "some kind of multi-headed serpent," in the words of Court of Appeal Justice John T. Racanelli, a former chairman, the record shows that they actually have little to fear.