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Wenger v. Commission on Judicial Performance7/13/1981
uty.
This court must independently determine from an examination of the record which, if any, of the charges are supported by clear and convincing evidence. Thence we decide whether to adopt, modify, or reject the recommendation of removal. (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal. 3d 270, 276 [110 Cal. Rptr. 201, 515 P.2d 1].) Generally we give weight to the findings and conclusions of both commission and master. (Spruance, 13 Cal. 3d at p. 799, fn. 18.) Here, though, their views vary as to factual details and as to application to the facts of grounds for removal. (See fn. 4.) For example, several acts the commission treated as wilful misconduct were found by the master to constitute only prejudicial conduct.
In light of that variation we give special weight to the master's resolution of fact issues that turn on the credibility of testimony in his presence. (See Geiler, 10 Cal. 3d at pp. 275-276.) Yet, even though the commission heard no testimony, its own expertise and unanimity, plus the fact that it and not the master heard posthearing argument, suggest that deference be accorded to its inferences and conclusions.
Petitioner's Background and Working Environment
Many of the charges sustained involve petitioner's failure to follow proper procedure; e.g., abusing the contempt power and failing to disqualify. His background and working environment are relevant to those charges, and he testified as follows:
After graduating from McGeorge Law School in 1969 he was admitted to practice in 1970. Before then he had been a Sacramento County probation officer. After admission and until his election to the justice court in March 1975 he was a deputy district attorney of El Dorado County. In July 1975 he attended the two-week judge's college sponsored by California Judicial Education and Research (CJER). Subsequently he attended most of CJER's twice-yearly seminar sessions.
His court was on a rural road six miles from the courthouse in Placerville. His in-chambers library contained little more than the third series of California Reports and Appellate Reports (beginning in Oct. 1969), annotated California codes, texts on criminal law and evidence, and several procedure manuals. The Placerville courthouse housed the county law library, two departments of the superior court (Judges Byrne and Fogerty), and the Placerville Justice Court (Judge Hamilton). The Georgetown-Divide Justice Court (Judge Smith) was an estimated 18 to 21 miles away over a "difficult road"; the other justice court was at South Lake Tahoe. As of January 1, 1977, "the jurisdiction of municipal and justice courts is the same and concurrent." (Code Civ. Proc., § 83.)
We turn to the wilful misconduct and prejudicial conduct charges sustained by the commission. They are discussed in connection with the 11 incidents whence they arose, now set forth in chronological order.
Renfro
In Renfro the commission concluded that petitioner committed wilful misconduct by abusing the contempt power and failing to disqualify himself. The master had concluded that both acts constituted prejudicial conduct; whether he found that the failure to disqualify also constituted wilful misconduct is unclear.
Attorney Stephen Keller represented Renfro on a drunk driving charge (Veh. Code, § 23102, subd. (a)). Trial was set for May 5, 1977. On April 29 Keller filed a motion for peremptory disqualification of petitioner (Code Civ. Proc., §
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