Calling out the Chief Justice

It is now public knowledge that early last year I asked the Commission on Judicial Performance to consider taking disciplinary action against Chief Justice Tani Cantil-Sakauye in connection with egregious decisional delays by the 3rd District Court of Appeal. Here is why I think such discipline would be appropriate.

The Chief Justice wears two hats – as Chief Justice of California and as Chair of the Judicial Council. The California Constitution requires her, as Chair of the Judicial Council, to “seek to expedite judicial business and to equalize the work of judges.” (Cal. Const., art. VI, § 6). In connection with this responsibility, Code of Judicial Ethics Canon 3(C) requires her to “take reasonable measures to ensure the prompt disposition” of matters in California courts, and California Rule of Court 10.1016 requires her to “notify the Commission on Judicial Performance of a reviewing court justice’s … [s]ubstantial failure to perform judicial duties.”

As Chief Justice Cantil-Sakauye explained during a 2012 appearance with the Rand Corporation: “When things go haywire, when things go wrong in the judicial branch, it is the Chief Justice’s name who is on the line.”

The Chief Justice has failed in her constitutional and ethical duties to ensure the timely adjudication of appeals in the 3rd District. The Judicial Council’s own quarterly internal reports and annual public reports of performance statistics for the Courts of Appeal plainly demonstrated the years-long crisis of delay at the 3rd District.

My CJP complaint focused on cases adjudicated in 2018–2020, but decisional delay at the 3rd District goes back much further – to the time when the Chief Justice served on that bench. In 2010, her last year at the 3rd District, there were failures of calendar preference in dozens of criminal decisions authored by her and Presiding Justice Vance Raye. Delays in 13 of those decisions exceeded the constitutional threshold for presumed prejudice to the defendants, extending from 12 to 24 months after the completion of briefing. Two of those tardy decisions reduced sentences of imprisonment after they had been fully served.

As I told the CJP last year in connection with my complaint of decisional delay: “At best, the Chief Justice was inexcusably ignorant of the mess at the 3rd District; at worst, she countenanced it.”

The Chief Justice also failed in her Rule 10.1016 duty to notify the CJP of Justice William Murray’s substantial failure to perform judicial duties. It is now evident that she knew about Justice Murray’s two strokes in 2017, after which his productivity plummeted. The Judicial Council’s spokesperson told the Daily Journal in January and again this month that “the Chief Justice had no direct knowledge of Justice Murray’s health condition.” That’s a Watergate-style “non-denial denial,” effectively admitting that the Chief Justice had indirect knowledge of Justice Murray’s disabled condition – meaning she learned about it from someone other than Justice Murray. Regardless, she knew.

As bad as the 3rd District’s systemic decisional delay has been, the nondisclosure of Justice Murray’s disability was even worse. Justice Murray admitted in his departure email to court staff that he delayed his retirement for four years to maximize his pension benefits. Meanwhile, dozens of appeals assigned to him for authorship continued to linger undecided – for up to ten years since the completion of briefing – causing real and serious harm to civil litigants, criminal defendants and crime victims awaiting restitution.

This sacrifice of timely decision-making on the altar of a full pension was arguably a “perversion or obstruction of justice by a judicial officer” under Penal Code section 96.5 – a misdemeanor. And to whatever extent Presiding Justice Raye or the Chief Justice may have participated in a coverup, it was not just a matter of violating Rule 10.1016’s notification duty; it was arguably a conspiracy to “pervert or obstruct justice” under Penal Code section 182 – a felony.

These are serious charges, and I don’t raise them lightly. But I feel compelled to speak out. The Judicial Council’s Governance Policies explain that the Judicial Council is responsible for ensuring the “accessible administration of justice” – of which hundreds of 3rd District litigants and crime victims have been deprived. Yet, the Judicial Council has balked at addressing this problem. Meanwhile, the CJP also remains silent, seemingly intending simply to let the offending 3rd District justices retire one by one, without being held accountable.

The people deserve more. The CJP should publicly admonish or censure the offending 3rd District justices – and should also hold the Chief Justice accountable – to help ensure that nothing like this happens again.