Although the code of judicial conduct uses the term “proceeding” repeatedly, it does not define the term, probably because the meaning seems straightforward and obvious.  However, in recent judicial discipline proceedings, a judge argued that his release of an acquaintance from jail at the request of an attorney/friend did not constitute a “proceeding” within the meaning of the disqualification requirement.  The California Commission on Judicial Performance rejected that argument, defining “proceeding” in the process.  Inquiry Concerning Petrucelli, Decision and order imposing public censure (California Commission on Judicial Performance August 18, 2015).

The judge and Jonathan Netzer, an attorney, had been close friends for several years, through their mutual patronage of a cigar shop, membership in a men’s group referred to as “HBC” (for Having Big Cigars) that congregated at the cigar shop, and international trips together.  Businessman Jay Ghazal and the judge met about 10 years ago and became socially acquainted through their mutual membership in HBC and social gatherings at the homes of HBC members.

Ghazal was arrested one Friday night on charges of felony spousal abuse.  At approximately 9:00 a.m. Saturday morning, Netzer texted the judge, “One of our HBC members was arrested last night on a domestic violence claim.  He’s asked that I bail him out this morning.  In 22 years of practice, th[is] is a first for me.  Do you have any suggestions for me before I head down to jail?  Thanks!”  The judge promptly called Netzer, and Netzer told him that Ghazal had been in custody for 12 hours without being booked and was scared.  The judge called the jail and told a supervisor there that he would like, or would be comfortable with, an own-recognizance release of Ghazal.  As a result, Ghazal was released on his own recognizance.

The Commission found that the judge violated several canons in the code of judicial conduct, including the requirement that a judge disqualify from any proceeding in which his impartiality might reasonably be questioned.  Although the judge did not dispute that he would have been disqualified from Ghazal’s criminal case or any matter in which Netzer represented a party, he maintained that a telephonic own-recognizance release from jail does not constitute a “proceeding” from which he was disqualified.  (He did admit that the release itself, apart from the question of his impartiality, was judicial misconduct.)

Because the canon refers only to “proceeding,” rather than “pending” or “impending” proceeding, the Commission addressed whether a proceeding “includes matters that are expected to occur in court in the near future or is limited to court proceedings.”  Noting that the terminology section of the California code uses “proceeding” and “matter” interchangeably, the Commission concluded that the words “are intended to have the same meaning” and that “the usual or ordinary meaning of proceeding, both in a common and legal context, encompasses judicial action in ordering an OR release from jail.”

The [California] Supreme Court has described the term “proceeding” as malleable, the meaning of which depends on the context and subject to which it relates. . . .   “’[P]roceeding’ in a legal context generally refers to the conduct of judicial business.”. . .  Judge Petrucelli does not dispute that he was taking judicial action when he ordered Ghazal’s release. . . .

To the extent there is ambiguity, we interpret “proceeding” in a manner that effectuates the intent or purpose of the canon.  The purpose of a canon requiring disqualification as required by law is to “assure the parties and the public of the integrity and fairness of the judicial process.”. . .  Thus, disqualification benefits not only the parties, but the public as a whole. . . .  If “proceeding” is limited to actions pending in court, a judge with a disqualifying interest would not be disqualified from making probable cause determinations and signing search and arrest warrants. . . .  A narrow interpretation of “proceeding” that excludes judicial action taken before a criminal case is filed would defeat the intent of canon 3E(1) — to assure the public that judicial action will be exercised impartially.  This purpose is best accomplished through an interpretation of “proceeding” that encompasses pre-filing judicial determinations.

Concluding the judge was disqualified from the question of Ghazal’s release, the Commission found that, although the judge described Ghazal as an “acquaintance,” their relationship was sufficiently close that a person aware of the facts might reasonably entertain a doubt about his impartiality.  The Commission noted that the judge made the determination to release Ghazal based on his personal knowledge and opinion of Ghazal and material information about Ghazal’s relationship with his wife he learned from others in their mutual social circle.

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