Widespread public attention

In a press release, the California Commission on Judicial Performance announced that it is closing its investigation of Judge Aaron Persky for the 6-month jail sentence (plus 3 years’ probation and lifetime sex offender registration) he imposed on a Stanford University student-athlete, Brock Turner, who had been convicted of sexually assaulting an unconscious woman behind a dumpster outside a college party.  As the Commission notes, the sentence “was widely criticized as being too lenient, and triggered significant public outrage and media coverage,” and the Commission received thousands of complaints.

Stating “[m]any complainants asked the commission to ensure that the sentencing in this case matches both the crime and the jury’s verdict and to be sure that justice is done,” the Commission emphasized that it “is not a reviewing court — it has no power to reverse judicial decisions or to direct any court to do so — irrespective of whether the commission agrees or disagrees with a judge’s decision.  It is not the role of the commission to discipline judges for judicial decisions unless bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty is established by clear and convincing evidence.”

The Commission concluded “that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”  It explained:

First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence.  Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases.  In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University [he had been a student-athlete there] are insufficient to require disclosure or disqualification.

The statement describes the Commission’s analysis, including a discussion of the judge’s statements during sentencing, a comparison to cases in which other judges have been reversed or disciplined for making statements that reflect bias, and an evaluation of the judge’s sentencing decisions in other cases.

Usually, the Commission’s decision to close an investigation would be confidential pursuant to the state constitution, but the constitution creates an exception that allows the Commission to issue an explanatory statement and the Commission used that exception “[b]ecause Judge Persky’s sentencing of Turner and the complaints to the commission received widespread public attention . . . .”  Although complainants and many members of the public may still disagree with the Commission’s decision not to charge Judge Persky, the release of the statement means that at least they can understand the basis for the decision and their disagreement will be an informed one.

Before the bench

Agreeing with the recommendation of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court recently removed a judge for her deceptive pre-bench conduct as an attorney toward her clients and co-counsel in the settlement of multi-party litigation.  Inquiry Concerning Watson (June 18, 2015).  Rejecting the judge’s “protestations to the contrary” and citing previous cases, the Court reiterated that it has jurisdiction over misconduct committed by an attorney who subsequently becomes a judge, “no matter how remote.”  Indeed, the Florida constitution states that the Commission “shall have jurisdiction over justices and judges regarding allegations that misconduct occurred before or during service as a justice or judge . . . .”

Other states have similar provisions.  For example, the rules of the Arkansas Commission on Judicial Discipline & Disability state that the Commission “shall have jurisdiction over allegations of misconduct occurring prior to or during service as a judge . . . .”  Rules provide that the Indiana Commission on Judicial Qualifications “shall have jurisdiction over conduct committed by a judicial officer, whether or not related to the judicial office and whether or not committed during the judicial officer’s term of office.”

The Nebraska Supreme Court suspended a judge for 6 months without pay for altering a copy of a police report in a criminal case while he was a county attorney 17 years earlier, providing the altered report to defense counsel, and asking the police officer who wrote the report to alter either his original report or his testimony to conform to the changes.  In re Krepela, 628 N.W.2d 262 (Nebraska 2001).  Previously, the Court had dismissed an action against the same judge, for the same conduct, bought by the Counsel for Discipline of the State Bar Association.  State of Nebraska ex rel. State Bar Association v. Krepela, 610 N.W.2d 1 (Nebraska 2000).  The Court explained that, if a judge were disbarred or suspended as a result of charges filed by the Bar, the judge would effectively be removed by a means other than that set forth in the constitution.  The Court also concluded that allowing Disciplinary Counsel to proceed against judges would compromise the independence of the judiciary.

In contrast, in In re Burrell, 6 S.W.3d 869 (Missouri 1999), the Missouri Supreme Court held that the Commission on Retirement, Removal and Discipline did not have jurisdiction over a new judge for conduct during his campaign for office.  The section in the state constitution that establishes the Commission provides that “the commission shall receive and investigate . . . all complaints concerning misconduct of all judges . . . .”  The Court concluded that section only addressed the misconduct of sitting judges and held that only attorney discipline authorities had jurisdiction to prosecute claims of pre-bench misconduct.

Some states have provisions giving attorney discipline authorities jurisdiction over pre-bench conduct by judges, although it is not always clear if this jurisdiction is exclusive or concurrent with that of the judicial conduct commission.  For example, rules in Alabama provide that “Incumbent judges are subject to the jurisdiction of the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar during their terms of office for misconduct occurring before they became judges.”  The rules of the Colorado Commission on Judicial Discipline state:

Conduct by a Judge or former Judge that involves grounds for disciplinary action . . . and/or may involve grounds for a violation of Colo. [Rules of Professional Conduct] may be referred by the Commission to Attorney Regulation.  Such referral shall not preclude the Commission from proceedings concerning conduct under its jurisdiction coincident with Attorney Regulation’s jurisdiction over violations of Colo. RPC.  Nothing in these Rules shall be construed to limit the jurisdiction of Attorney Regulation over an attorney with respect to conduct subject to Colo. RPC, which occurred before, during, or after the attorney’s service as a judge.

Not all states have provisions that expressly address the issue of disciplinary jurisdiction over pre-bench conduct.  (There will be a comprehensive article on this topic in the summer issue of the Judicial Conduct Reporter, which will be published in August.  To sign up to receive an e-mail notice when the issue comes out, click here.)