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ADMINISTRATIVE OFFICE OF THE COURTS

455 Golden Gate Avenue

Telephone415-865-4200

San Francisco, California 94102-3688

Fax415-865-4205

TDD415865-4272

MEMORANDUM
Date

Action Requested

November 10, 2006

For your information

To

Deadline

Presiding Judges of the Superior Courts

N/A

From

Mary M. Roberts, General Counsel

Deborah Brown, Managing Attorney
Mark Jacobson, Senior Attorney
Office of the General Counsel
Subject

Addressing Misconduct by Other Judges

This memorandum is an updated version of a memorandum that was initially prepared in

response to questions from presiding judges about what action to take when they become aware
of misconduct by other judges. In response to these inquiries, the Administrative Office of the
Courts' Office of the General Counsel compiied a review and summary of source material
available to assist presiding judges in complying with their ethical obligation to address judicial
misconduct. This memorandum includes a review of the law, a compilation of the advice offered
by the California Judges Association's Judicial Ethics Committee and David Rothman's
California Judicial Conduct Handbook, and information obtained from the Commission on
Judicial Performance (CJP). It also addresses how to interpret the requirement in canon 3D(l) of
the California Code of Judicial Ethics that judges take "appropriate corrective action" when they
become aware of misconduct by other judges. Specifically, the memorandum sets forth (1)
factors to consider in deciding what corrective action is appropriate, (2) tips on seeking advice in
making this determination, (3) examples of appropriate corrective action under certain
circumstances, and ( 4) examples of discipline the CJP has imposed ori judges for failure to take
corrective action.1
1

This memorandum can be found on the Serranus Web site at http://serranus.courtinfo.ca.gov/opinions!localunder

"Ethics."

Presiding Judges of the Superior Courts

November 10, 2006
Page2

)
The Office of the General Counsel initially developed this information in 2004 in consultation
with the Judicial Council' s Task Force on Judicial Ethics Issues and the Executive Committee of
the Judicial Council's Trial Court Presiding Judges Advisory Committee. This memorandum
replaces the previous March 8, 2004 memorandum on this subject. The updated information
includes new contact information for employees of the Administrative Office of the Courts
(AOC) and for the California Judges Association's Judicial Ethics Hotline, recent information
about the Judicial Officers' Assistance Program, and additional information about appropriate
corrective action.
Please note that the information contained in this memorandum is not intended as legal advice in
any specific situation. The Office of the General Counsel is available, however, to provide
specific legal advice to presiding judges on addressing misconduct by other judges.
I.

Canon 3D

A judge who becomes aware of misconduct by another judge is required by canon 3D(I) of the
Code of Judicial Ethics to take "appropriate corrective action." There is, however, very little
guidance on what constitutes "appropriate corrective action."
Canon 3D(l) specifically states:
Whenever a judge has reliable information that another judge has violated any
provision of the Code of Judicial Ethics, the judge shall take or initiate
appropriate corrective action, which may include reporting the violation to the
appropriate authority.
ADVISORY COMMIITEE COMMENTARY:
Appropriate corrective action could include direct communication with the judge
... who has committed the violation, other direct action if available, or a report
of the violation to the presiding judge, appropriate authority, or other agency or
body....

This canon applies to all judges. However, because of their leadership position within the court,
presiding judges are more likely to have or receive information about misconduct by other judges
in the court.

11.

What Is "Appropriate Corrective Action"?

No language in canon 3D mandates that any certain type of conduct be reported to the CJP. The
commentary to the canon suggests that appropriate corrective action might be direct
communication with the judge, reporting the conduct to the presiding or supervising judge, or
filing a complaint with the CJP. Thus, for example, if a judge becomes aware that another
judicial officer has been drinking excessively at lunch and the judicial officer's ability to perform
his or her judicial duties is thereby impaired, the judge must take appropriate corrective action.

Presiding Judges of the Superior Courts

November 10,2006
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\

The action could include (depending on the circumstances) talking to the judicial officer,
reporting the matter to the presiding judge, or reporting the matter to the CJP.
A.

Factors to Consider

The factors to consider in deciding what corrective action to take include the following:

B.

The seriousness of the misconduct

Whether the misconduct is an isolated incident or part of a pattern of inappropriate
behavior
Whether there is an entity specifically designed to address the type of misconduct at issue
(e.g., the Judicial Support Hotline sponsored by the California Judges Association, which
makes referrals to specialists for such problems as substance abuse, or the Judicial
Officers' Assistance Program)
Whether any criminal offense was involved
How similar misconduct has been adessed by the court in the past
If the judge has been confronted, the judge's reaction (e.g., whether the judge accepts
responsibility and indicates a willingness to address the issue)
Seeking Advice and Resources

It is often unclear what corrective action should be taken when a judge becomes aware of
misconduct by another judge. It is very difficult to define a category of misconduct and state that
a certain type of corrective action is always appropriate for that type of misconduct.
determining the appropriate corrective action, it is useful to seek advice from others. The
Judicial Ethics Committee of the California Judges Association frequently receives and responds
to this type of inquiry and is an excellent resource. The telephone number of the Judicial Ethics
Hotline is 415-263-4600.
In

It is also useful to contact other judges to solicit advice on appropriate corrective action.
Presiding judges may wish to contact former presiding judges in the county or current or former
presiding judges from other counties to ask what those judges would do in a particular situation.
If a presiding judge contacts another judge or former judge for advice, the presiding judge should
keep the name of the subject judge confidential.
It may be worthwhile to consult the California Judicial Conduct Handbook by David Rothman.
The book contains a section on this issue. (Rothman, California Judicial Conduct Handbook (2d
ed. 1999) 5.65, pp. 152- 154.)
If a

presiding judge is interested in obtaining legal advice generally about corrective action and
wishes to engage in a privileged communication, he or she is advised to contact the AOC's
Office of the General Counsel. More specifically, if a presiding judge becomes aware of
misconduct by another judge that may involve unlawful behavior, such as sexual harassment,he
or she should contact the Office of the General Counsel for privileged legal advice.

Presiding Judges ofe Superior Courts

November 10, 2006
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)
Another resource available to all justices, judges, and subordinate judicial officers is the Judicial
Officers' Assistance Program (JOAP). The JOAP is a counseling and consultation service
designed to help judges and their family members with a wide range of personal issues, including
substance abuse. Referral of a judge to the JOAP may constitute appropriate corrective action. A
judge can contact the JOAP directly by calling the program's administrator-Magellan Health
Services-at 800-424-4159 or by visiting the Magellan Web site at www.magellanhealth.com.2
To obtain information about the program from the AOC, a judge can contact Virginia Robles,
Senior Pay and Benefits Specialist in the AOC's Human Resources Division, at 415-865-4295 or
virginia.robles@jud.ca.gov; or Eaine Carlino, Senior Human Resources Analyst, at 415-8654304 or elaine.carlino@jud.ca.gov. In addition, information about the program can be found on
the Serranus Web site at http://serranus.courtinfo.ca.gov/programs/hr/documents/judoff_assist
_prog_broch.pdf
C.

Examples of Corrective Action

The following examples of corrective action are drawn from Ethics Updates, published by the
Judicial Ethics Committee of the California Judges Association (CJA), and David Rothman's
California Judicial Conduct Handbook. It is important to bear in mind that people may differ in
their view of what constitutes appropriate corrective action, and the CJP may not agree with the
actions recommended below by the CJA and Judge Rothman.
Sexual Harassment

A presiding judge who has received an employee complaint that another judge made an
inappropriate sexual remark must take appropriate action, which might include discussion
with the parties or referral to the CJP. (December 1995 CJA Ethics Update.)

Criminal or Unlawful Conduct

If a judge has reliable information that another judge has committed a serious criminal
offense, the conduct must be reported to both the CJP and the appropriate law
enforcement agency. (Rothman, California Judicial Cpnduct Handbook (2d ed. 1999)
5.65, p. 153.)

If a judge has probable cause to believe that another judge has converted a significant
amount of court property for personal use, the judge should report this conduct directly to
the CJP. (February 1994 CJA Ethics Update.)

To access the information on the Web site, a judge should click on the "I'm a Member" button, then click on "New

or unregistered user." The program number is the same as the toll-free number-800-424-4159. The judge can

register as a new user or continue unregistered, but only registered users have access to secured messaging with

Magellan's clinicians.

Presiding Judges of the Superior Courts

November 10,2006
PageS

A judge before whom another judge has entered a plea to driving under the influence
must take some corrective action (e.g., referral to a treatment program, reporting to the
appropriate supervising judge, etc.). (January 1997 CJA Ethics Update i

A judge has an obligation to take or initiate appropriate measures concerning a judge who
disobeys the county's anti-smoking ordinance. (February 1994 CJA Ethics Update.)

A presiding judge who knows that a judge has willfully refused to comply with a jury
summons despite the presiding judge's admonitions to do so has two obligations: (1)
schedule a sanctions.hearing according to statute, arranging for a judge assigned by the
Judicial Council to conduct the hearing; and (2) report the judge to the CJP in light of the
judge's willful and deliberate defiance of the presiding judge's admonitions. (March 2006
CJA Ethics Update.)

Refusing Assignments

A judge assigning cases must report a judge who refuses to accept those assignments.
(December 1995 CJA Ethics Update.)

Demeanor

A judge's display of inappropriate anger and abusiveness in court, or the telling of an

offensive joke, would be the sort of conduct that can appropriately be dealt with either
directly with the judge or by reporting to the presiding judge. (Rothman, California
Judicial Conduct Handbook (2d ed. 1999) 5.65, pp. 152-153.)

Incapacity

If a judge becomes aware of erratic behavior by another judge that might indicate mental
breakdown, it should be reported to the presiding judge so that immediate action can be
taken to protect the public and secure help for the judge. (Rothman, California Judicial
Conduct Handbook (2d ed. 1999) 5.65, p. 154.)

Improper Transfers/Attempting to Influence Cases

If a judge becomes aware that another judge has attempted to improperly influence
another judge's decision, it should be reported to the presiding judge and the CJP.
(Rothman, California Judicial Conduct Handbook (2d ed. 1999) 5.65, pp. 153-154.)

A presiding judge confronted with a juc;lge who keeps matters after being disqualified,
threatens a colleague, and refuses a transfer must report that judge to the CJP. (December
1995 CJA Ethics Update.)

3 Note that canon

of a

3D(3) of the California Code of Judicial Ethics requires a judge who is charged with or convicted
Dill to report that fact to the CJP in writing.

Presiding Judges of the Superior Courts

November 10, 2006
Page 6

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Political Activity

Ill.

A presiding judge must take appropriate corrective action upon discovering that a
commissioner has endorsed a candidate for nonjudicial office in violation of canonSA.
(January 1998 CJA Ethics Update.)

Disciplinary Action by the CJP for Failure to Report

Very few judges have been disciplined by the CJP for failure to take corrective action concerning
other judges who have engaged in miscoijduct. In 2002, a judge received an advisory letter,
which is considered disciplinary action,4 for failure to take action. In the CJP's 2002 Annual
Report, the description of the matter is as follows: "A judge failed to take any action when
information revealing potential serious wrongdoing by a judicial colleague was before the
judge." In a 1997 case, the CJP sent an advisory letter to a judge who "failed to take appropriate
action after presiding over alcohol-related charges involving another judge."
Another judge was investigated for failing to report an incident in which he observed a judge
deflating the tires on a van parked in the judge's parking place. In that case, in which the
California Supreme Court rejected the CJP ' s recommendation of public censure, the court stated,
"[l]f a judge is a direct witness to manifestly unprofessional conduct that is either serious or
repeated, the judge should, unless circumstances dictate otherwise, report that conduct to
appropriate authorities who can investigate further and take any necessary disciplinary action."
(Dodds v. Commission on Judicial Performance (1995) 12 Cal.4th 163, 173.)
It is noteworthy that no judge has been disciplined in California for taking the wrong corrective
action.
Whenever a presiding judge takes corrective action, he or she should preserve a record of the
action taken. This record can be used to demonstrate that the presiding judge has complied with
canon 3D(l). When a new presiding judge takes office, the record or a copy thereof should be
provided to the new presiding judge. This will enable the new presiding judge to determine
whether a judge has engaged or is engaging in a pattern of misconduct and what corrective action
is appropriate under the circumstances.

:MMRIDB/MJ/gf
William C. Viclaey, Administrative Director of the Courts
cc:
Ronald G. Overholt, Chief Deputy Director
AOC Regional Administrative Directors
AOC Division Directors

See

Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 389.