Wenger v. Commission on Judicial Performance7/13/1981
SUPREME COURT OF CALIFORNIA
S.F. 24135
1981.CA.40497 ; 29 Cal. 3d 615; 175 Cal. Rptr. 420; 630 P.2d 954
July 13, 1981
JERROLD L. WENGER, A JUDGE OF THE JUSTICE COURT, PETITIONER,
v.
COMMISSION ON JUDICIAL PERFORMANCE, RESPONDENT
Mull & Mull and Richard M. Skinner for Petitioner.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Charles P. Just and Eddie T. Keller, Deputy Attorneys General, for Respondent.
Before Bird, C. J., Tobriner, J., Mosk, J., Richardson, J., Newman, J., Kaufman, J., and McDaniel, J.
The Court
The Commission on Judicial Performance unanimously recommends that Justice Court Judge Jerrold L. Wenger of the El Dorado Judicial District, El Dorado County, be removed for "wilful misconduct in office" (hereafter wilful misconduct) and "conduct prejudicial to the administration of justice that brings the judicial office into
disrepute" (hereafter prejudicial conduct) (Cal. Const., art. VI, § 18, subd. (c). The judge has petitioned this court for review. (Cal. Rules of Court, rule 919(b).)
He was elected on March 4, 1975, took office on March 18, and was reelected for a six-year term beginning January 1977. The commission notified him in March 1978 and again in August that it had received and was investigating statements alleging his misconduct. (See rule 904.) In December 1978 he was served with a notice of formal proceedings (rule 905) that stated 24 charges of misconduct arising out of 13 incidents. In 1979 there were four amended notices, alleging five additional charges of misconduct in three incidents. The original notice was framed in two counts. The first alleged that all the charges constituted wilful misconduct; the second, that all constituted prejudicial conduct. The amended notices added a third count of persistent failure or inability to perform judicial duties.
From October 30 to December 4, 1979, 21 days of hearings were held before a master. He made findings of fact and conclusions of law from the testimony and exhibits, without receiving closing briefs or hearing oral argument from counsel. Exceptions to his report were filed with the commission which, on February 28, 1980, heard oral argument. It then filed here on March 19, 1980, its findings, conclusions, and recommendation of removal.
The master's and commission's findings and conclusions are based on count one (wilful misconduct) and count two (prejudicial conduct). Count three (persistent inability or failure to perform) was rejected by the master. The commission explained that the charges in that count "were not reached and are dismissed in view of the Conclusions arrived at in Counts One and Two."
We are concerned only with the charges the commission sustained. (Spruance v. Commission on Judicial Qualifications, supra, 13 Cal. 3d 778, 784, fn. 5.) They are 14 charges of wilful misconduct and 6 of prejudicial conduct, arising out of 11 incidents. Each was pleaded as an instance of one of five kinds of misconduct: (A) petitioner's improper injection of himself into judicial proceedings, resulting in denial or apparent denial of fair hearing, (B) abuse of contempt power, (C) rude and profane conduct, (D) his improper failure to disqualify himself, and (E) obstruction of a public officer's performance of d
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