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State Judicial Commission

July 20, 1994

Prof. Ruth Rosen charges the Commission on Judicial Performance with "gross corruption and misconduct" (Commentary, June 30). Those charges are unfounded and irresponsible. As commission members who represent the public and attorney sectors, we have not participated in or observed any misconduct or corruption within this body.

Rosen apparently infers "corruption" from a recent decline in removals. She neglects, however, to mention the recent increase in judges who have resigned or retired while under commission investigation or with commission charges pending: 23 over the last six years, and seven in 1993 alone. Such departures are tantamount to removals.

The commission, in any event, cannot itself remove or censure a judge. It can only petition the Supreme Court to do so. That process is expensive and time-consuming. For the commission to routinely pursue removal or censure, after judges have removed themselves, would seem an unwise use of scarce resources.

Rosen also neglects to mention recent public discipline. In 1988, California voters authorized "public reprovals." That option requires the judge's consent. Nevertheless, 13 reprovals have been issued. Judges would not be consenting to reprovals--or resigning with charges pending--if the commission were not rigorously holding them to account.

Rosen suggests that commission effectiveness be gauged by the so-called "national average" for removals. States' disciplinary systems vary significantly, however. Actions of other states are pertinent from a substantive viewpoint, but hardly from a statistical one.

Rosen implies that the commission opposes legislation that would enhance openness, create a majority of non-judge members, and give the commission rule-making power. In fact, the commission supports both these changes and others, including provisions to release confidential information in the judicial appointment process and increase diversity among commission members.

The commission, contrary to Rosen's implications, does not favor secrecy. Since 1988, the Constitution has authorized open hearings in limited circumstances. The commission has ordered an open hearing every time those circumstances existed. Respondent judges, however, have challenged those orders in court, thus blocking open hearings.

Current laws mandate confidentiality in most cases. The commission must obey that law, not to protect judges charged with misconduct, but to prevent the exclusion of evidence or dismissal of a case based on breach of confidentiality.

We agreed to serve as public and attorney members (an annual commitment of some 20 days and substantial preparation time, without pay) because we believe our legal system requires public confidence in an honest and impartial judiciary.

CHRISTOPHER J. FELIX

EDWARD P. GEORGE JR.

ANDY GUY

JAMES W. OBRIEN

San Francisco

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