The 3rd District's delay fiasco and another lesson learned

At the outset of 2021, I filed a complaint with the Commission on Judicial Performance against a handful of appellate justices at the 3rd District Court of Appeal in Sacramento for egregious delay in deciding hundreds of civil and criminal appeals. The human damage has been widespread. Criminal defendants have served out their prison terms while awaiting sentence reductions or complete reversals. Elderly crime victims have died while awaiting restitution payable only after affirmance. Civil trials have been delayed as long as six years pending appeals challenging wrongly decided motions.

My CJP complaint remains pending and is approaching its one-year anniversary. Meanwhile, the 3rd District's crisis of decisional delay continues. As recently as December 17, 2021, in People v. Joseph, C089183, the court belatedly struck 16 months from a 64-month prison sentence after it had been fully served. In People v. Washington & Oliver, C070732, now pending for 10 years and fully briefed for almost nine years, the court has yet to calendar the appeal for argument.

One wonders how this judicial malpractice could be tolerated for so long. It was certainly preventable. Rule 10.1016(a)(1)(A) of the California Rules of Court requires "the Chief Justice or presiding justice" to notify the CJP of an appellate justice's "[s]ubstantial failure to perform judicial duties." Canon 3D(1) of the Code of Judicial Ethics requires all California judges to advise the CJP of "reliable information that another judge has violated" an ethical duty. Why is it that, evidently, nobody acted under these rules?

It's because of a failure to heed a lesson from California legal history going back half a century.

The McComb dilemma

Near the end of 1975, the Lawyers Club of San Francisco issued a press release asking the Commission on Judicial Qualifications -- the CJP's predecessor -- to investigate California Supreme Court Justice Marshall McComb for falling asleep on the bench during arguments. This created a unique dilemma, because the commission's power at that time was limited to making recommendations to the California Supreme Court as the ultimate arbiter of judicial discipline. Never before had the commission investigated a Supreme Court justice, and plainly it would have been inappropriate for the Supreme Court to sit in judgment of one of its own members.

Yet the law prescribed no alternative path. What was needed was an ad hoc tribunal, other than the Supreme Court, to adjudicate the commission's recommendation on Justice McComb.

The constitutional revisions

While the commission was investigating Justice McComb, proceedings commenced in the California Legislature on constitutional revisions proposed by the State Bar of California and the California Judicial Council to establish a mechanism for convening such a tribunal. On June 24, 1976, the Legislature passed a resolution proposing an amendment to article 6, section 18 of the California Constitution to provide that a recommendation for the censure, removal, or retirement of a Supreme Court justice "shall be determined by a tribunal of 7 court of appeal judges selected by lot."

The resolution also proposed changing the name "Commission on Judicial Qualifications" to "Commission on Judicial Performance" and revising the existing constitutional provision for removal or censure due to "wilful and persistent failure to perform the judge's duties" (former article 1, section 18(c)(2)), to read "persistent failure or inability to perform the judge's duties." The resolution's initial draft simply deleted the word "wilful," to enable removal or censure without having to prove a culpable state of mind. At the commission's urging, a subsequent draft added the word "inability," extending the provision's reach beyond "failure" in the sense of an effort's lack of success, to "inability" in the sense of a lack of capacity to undertake the effort at all.

By this time, the commission's investigation had indicated Justice McComb was so cognitively impaired by senility that he had lost the capacity to perform his judicial duties. The problem wasn't that he was trying but failing; the problem was that he was unable. The investigation had spotlighted a gap in the existing constitutional provision for removal or censure, into which Justice McComb fell. The proposed revisions would close that gap.

The voters approved the revisions on November 2, 1976. The very next day, with the necessary authorization, the commission commenced its evidentiary hearing on Justice McComb.

The McComb proceedings

At the hearing, Chief Justice Donald R. Wright testified that McComb had "done no work" since at least 1970. McComb attended but did not participate in the court's weekly conferences. He repeatedly fell asleep during oral arguments. Chief Justice Wright had taken to assigning him only simple State Bar discipline cases (over which the Supreme Court then had original jurisdiction), for which McComb's secretary prepared draft opinions. Chief Justice Wright summed up: "I think he is senile and isn't competent to carry on the work of the Supreme Court." Other Supreme Court justices and staff testified similarly. Suffice it to say, the details were sad and embarrassing -- from bizarre behavior during weekly conferences, to incontinence in a bailiff's car, to audible snoring on the bench.

None of the Supreme Court justices, however, had done anything about the problem, other than ensuring that nothing important was entrusted to Justice McComb. None of them brought the problem to the commission's attention, and they had no particular obligation to do so. It took whistleblowing by the Lawyers Club of San Francisco to start the process of achieving Justice McComb's departure from the bench.

On completion of the hearing, the commission recommended that McComb be "removed" or "retired" -- "removed" under former section 18(c)(2) for "wilful and persistent failure to perform the judge's duties," or "retired" under a different constitutional provision, former section 18(c)(1), for "disability that seriously interferes with the performance of the judge's duties and is or is likely to become permanent."

The ad hoc tribunal moved swiftly. On May 2, 1977, it ruled that McComb should be "retired" rather than "removed," because "[t]he conduct in question was not wilful, but is symptomatic of senility." McComb v. Commission on Judicial Performance (1977) 19 Cal. 3d Spec. Trib. Supp. 1, 14. The matter ended with disability retirement as the lesser of the two sanctions. The tribunal's adherence to former section 18(c)(2), instead of that section as newly revised, spared Justice McComb the greater indignity.

The pre-1976 standard for removal or censure is now long gone, as is the restriction of commission authority to "recommending" discipline by the Supreme Court. Under current article 6, section 18(d), the CJP may itself remove or censure a judge for "persistent failure or inability to perform the judge's duties." Applying today's standard, with "wilful" deleted and "inability" added, Justice McComb might not have been treated so leniently or served for so long while incapacitated.

The CJP notification rules

After the McComb fiasco as enabled by the silence of Justice McComb's colleagues, the CJP sponsored new Rules of Court to prevent similar occurrences. In 1979, at the CJP's behest, the predecessor to current Rule 10.603(c)(4)(A) was added to require presiding judges of the trial courts to notify the CJP of a judge's "substantial failure to perform judicial duties." In 1983, again at the CJP's behest, the predecessor to current Rule 10.1016(a)(1)(A) was added to require "the Chief Justice or presiding justice" to notify the CJP of an appellate justice's "[s]ubstantial failure to perform judicial duties."

Yet, despite the notification requirements of Rule 10.1016(a)(1)(A) and Canon 3D(1), it seems no justice or judge notified the CJP of the delay fiasco that has been unfolding in the 3rd District for about as many years as Justice McComb was incapacitated. Just as in 1975, it took a whistleblower outside the judiciary to get it done.

Another lesson learned

The 3rd District's delay fiasco has shown the notification requirements to be weak links in the protections that the CJP, the California Judicial Council, and the State Bar devised in response to the McComb fiasco. When it comes to invoking CJP oversight, those who bear administrative and ethical responsibility for ensuring their colleagues' adequate performance of judicial duties are likely to be the only effective line of defense. The litigants may not understand that the judicial process has gone awry, and their attorneys may fear the retaliation that could befall their clients or their careers if they blow the whistle.

Thus, absent notification by those who bear the administrative and ethical responsibility, judicial malfeasance and nonfeasance are likely to evade CJP oversight. As explained in the 1983 annual Report of the Commission on Judicial Performance, "there is no other dependable avenue for such information to reach the Commission."

This line of defense needs to be shored up. The best way to do so is through the prospect of meaningful CJP discipline -- such as removal, public censure, or public admonishment -- for violating Rule 10.1016(a)(1)(A) or Canon 3D(1). In addressing the 3rd District's crisis of decisional delay, the CJP has an opportunity to make clear that there is a price to paid when judges, individually or collectively, condone a colleague's inability to perform judicial duties. An effective responsibility to report judicial nonperformance -- whatever its cause -- requires effective accountability. 