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Wenger v. Commission on Judicial Performance7/13/1981
arge, and (2) the charge should be heard before another judge. He readily conceded that Brooks' declared belief of inability to obtain a fair trial before petitioner had been formed because Keller "persuaded him to believe it."
After berating Keller, petitioner declared him in contempt and sentenced him to five days in jail beginning on November 24 (the 23d being Thanksgiving). Finally he asked, "Do you have anything further, Mr. Keller?" Keller said, "Yes, what is your ruling on the motion for change of venue?" Petitioner replied, "Oh, I have no objection to that; in fact, I welcome it."
Keller through Attorney Cline filed for a writ of certiorari with the superior court which, on November 22, stayed Keller's sentence. At the December 6 hearing on the writ petitioner appeared through County Counsel Sprunger. At the end of the hearing Judge Fogerty "without hesitation" granted the writ from the bench and said he was "appalled by these proceedings."
Petitioner did abuse the contempt power. The genuineness of Brooks' belief that petitioner would not give him a fair trial was consistent with its being based wholly on information about strained relations
between petitioner and Keller. Petitioner knew or should have known that Keller's advice to Brooks was proper. The contempt order and jail sentence appear motivated by personal animosity; rendering them was wilful misconduct.
The charge of failure to disqualify is dismissed. Brooks' case was duly transferred. Petitioner would have been entitled to deal with the filing in his court of a false affidavit before that transfer as a direct contempt. (In re Ciraolo, supra, 70 Cal. 2d 389, 393.) His position that such a contempt proceeding need not be transferred to another judge was sufficiently plausible to preclude a finding of misconduct based on lack of transfer. (See id. at p. 392; In re Buckley, supra, 10 Cal. 3d 237, 256.) Disney
The commission concluded that petitioner committed wilful misconduct in banishing Prosecutor Susan Disney from his court, thus limiting the district attorney's options in making personnel assignments. The master had reached a similar conclusion.
Disney was assigned to the court on being employed as a deputy in the fall of 1978. She criticized petitioner's handling of the Rogers matter that October. They had a strained discussion of the incident but made efforts to get along and by March 1979 had developed a workable relation.
In March petitioner was served with the commission's first amended notice of formal proceedings; it charged misconduct in Rogers. (The charge was later rejected by the master and dismissed by the commission.) Petitioner believed Disney was the source of the charge. He told District Attorney Tepper that he felt betrayed and would prefer that Disney not be assigned to his court.
In April 1979 Disney was present in Judge Hamilton's court during proceedings in the May case, which had been transferred from petitioner's court. When May expressed dissatisfaction at petitioner's handling of the case Hamilton told May how to communicate with the commission. On April 17 petitioner was served with the commission's second amended notice charging misconduct in May. (That charge also was rejected by the master and dismissed by the commission.) Petitioner assumed Disney had steered May to the commission and again complained
to Tepper. On learning that May's source of information was Hamilton, petitioner apologized to Tepper and Disney.
Petitioner had no further contact with Disney until July 11, when Tepper assigned her two cases in petitioner
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 California DUI Attorneys
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