Adopting findings made by 3 masters, the California Commission on Judicial Performance has severely censured a judge for (1) conduct while running for office in 2012, including misrepresentations on his campaign web-site, failing to resign as the officer of 3 political action committees, publicly opposing President Barack Obama’s re-election, and violations of the state’s election laws; (2) after being sworn in as a judge, remaining counsel of record in a federal case for approximately 6 weeks and issuing 4 checks from his law office account; (3) improper courtroom decorum, poor demeanor, bias, and/or a lack of impartiality; (4) improperly responding to a “blanket” challenge from the city attorney’s office; (4) telling an African-American court employee who had participated in a Halloween costume contest that she should not say she “didn’t win due to racism;” (5) stating during a proceeding, “I had a Filipino teacher who always used to ask for a shit of paper;” (6) improperly soliciting the legal opinions of attorneys in cases in which they did not represent a party; (7) giving a small claims plaintiff the choice of dismissing his case and filing it as a civil case or having the judge decide based on evidence that the judge said was insufficient to support his claim of damages; and (8) repeatedly interjecting his personal experience during a small claims case. Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).
The Commission and the masters characterized various examples of the judge’s courtroom demeanor as inappropriate, offensive, crude, reflecting bias, discourteous, demeaning, too informal, inappropriately familiar, indecorous, undignified, disrespectful, unbecoming, gratuitous, or insensitive. Noting that, when he started as a judge, the presiding judge had “told him to create a friendly courtroom environment,” the judge argued that many of his remarks were attempts at humor, that he was “[t]rying to get a laugh” and “put people at ease.” As in previous cases, the Commission was not persuaded by that defense, explaining:
Creating an accessible and welcoming atmosphere does not include the type of inappropriate remarks made by Judge Kreep . . . . The commission appreciates that each judge has his or her own style and that a certain level of levity or humor is not necessarily improper. “However, the cultivation of a particular judicial personality may not be used as an excuse for unethical conduct. . . . [R]egardless of the judge’s style, she or he must respect the litigants and attorneys who appear in her or his court.” Moreover, judicial humor should never be used in a courtroom in “a manner that diminishes the dignity of the judicial process.” “Judges are expected to administer justice and resolve serious issues, not to provide entertainment.”
For example, when Deputy Public Defender Leticia Hernandez appeared before the judge to enter a change of plea in a criminal case, the following exchange took place:
THE COURT: I love her accent.
HERNANDEZ: I’m Mexican.
THE COURT: Are you a citizen of the country of Mexico, Ms. Hernandez?
THE COURT: Okay. Okay. There is an attorney in town that I know that is actually a citizen of the – of Mexico who does immigration work here in California.
HERNANDEZ: Oh no, your Honor. I am a U.S. citizen and proud of it.
THE COURT: The — I wasn’t planning on having you deported.
The Commission found:
Drawing attention to a person’s ethnicity and questioning a person’s citizenship when these are not issues in the matter before the judge, can reasonably be perceived as offensive and reflecting bias. Additionally, a judge should be sensitive to the possible impact of such comments on the attorney-client relationship when made in the presence of the attorney’s client. Judge Kreep maintains that his comments were not meant to be offensive. However, as noted by the masters, regardless of his intent, “the comments were likely to offend members of the public and could be construed as discourteous, demeaning, or as suggesting bias based on ethnic or national origin.”
The Commission also agreed with the masters’ conclusion that the judge’s “unilateral creation and use of nicknames for attorneys and interns,” such as Bun Head, Shorty, and Ms. Dimples, “was discourteous and did not convey proper respect for them.” The Commission found that his use of nicknames “created an atmosphere in the courtroom that was too informal and lacked appropriate decorum” and could suggest a lack of impartiality or a sense of inappropriate familiarity.
The judge had also made comments such as, “She’s a pretty girl, you know you could smile,” and “We’ve got all sorts of very attractive, young PD’s around here, so.” He said to a defendant, “the lovely attorney next to you went over the form, correct?” He also referred to a deputy public defender as “the pretty brown one.” The Commission agreed with the masters’ conclusion that, “Judge Kreep’s comments about the physical appearance of persons appearing in his courtroom were not relevant to the court proceedings, made others in the courtroom uncomfortable, did not afford proper respect to the individuals, diminished the dignity of the judicial process, and may have created the appearance of bias or impartiality.”
The Commission also found that the judge “used language that was crude and undignified.” The judge had said, for example, “I’ll kick her in the butt,” if a deputy city attorney was late to a hearing. He told a defendant in an abusive relationship, “Just so you know, ma’am, I grew up in a relationship where I used to get the crap beat out of me on a regular basis by a stepfather [unintelligible] my mother. So I have some understanding of what you’re going through, okay? From a child’s perspective.” The Commission concurred with the masters’ findings:
The words “butt” and “crap” may be relatively tame examples of crude language, particularly when compared to the vulgar language rampant in culture, social media, and entertainment. But a higher standard of conduct is required in our courtrooms, and for good reason. . . . Casual conduct and crude language are inconsistent with those requirements. . . . Judge Kreep’s statements were indecorous and undignified, and in some cases did not convey proper respect for the individuals appearing in his courtroom.