Justice may be blind, but the commission in charge of disciplining California’s judges should have its eyes wide open when a jurist shows up on its docket more than once.
Because judges wield such enormous power, it is no trifling matter when they stand accused of abusing their authority. And since it is exceedingly rare for them to be formally investigated, it is very troubling that two local jurists – Placer Superior Court Judge Joseph W. O’Flaherty and Sacramento Superior Court Judge Peter J. McBrien – have been in the dock twice.
Over the last decade, the state Commission on Judicial Performance has fielded an average of 982 complaints a year. Almost all are summarily dismissed because there’s no evidence of anything fishy; there have been only 34 formal proceedings in that time. If the commission finds misconduct, it can issue a private admonishment, a public admonishment or censure, and in the most egregious cases it can sack a judge – done only two dozen times.
The commission considers previous misconduct, and its director says there has never been a judge censured more than once who has not been removed. But even without a prior censure, repeat offenders deserve special attention.
Last week, the commission announced formal proceedings against O’Flaherty, who joined the Superior Court bench in 1998.
The complaint stems from a small-claims case in which a customer alleged that Golden 1 Credit Union had interfered in his sale of a used car. After O’Flaherty dismissed the case in December 2008, two credit union employees told him they were worried that the customer would come after them. The judge hauled the man back into his courtroom and ordered him to stay away from the branch where the employees worked for 90 days. The commission says issuing that order was an “abuse of authority.”
In 2004, the panel admonished O’Flaherty after finding that in two cases, he invited potential jurors who might be racially prejudiced to misrepresent why they couldn’t serve. Both defendants were convicted – and both convictions were overturned because of O’Flaherty’s jury instructions.
Another local judge the judicial commission should monitor closely is McBrien, who has been disciplined twice since becoming a Sacramento Superior Court judge in 1989.
In 2000, the judge pleaded no contest to a misdemeanor for illegally cutting down trees near his house on the American River Parkway. Two years later, the commission admonished him.
Last month, the commission publicly censured McBrien for his “manifestly unjudicial” handling of a 2006 divorce case. The panel found he declared a mistrial before all the evidence was in – leading to his decision being overturned. It also found the judge improperly threatened one lawyer with contempt. And it concluded that his “failure to appreciate the full extent” of his conduct suggested a likelihood of future misbehavior.
Weighing all those factors, two commissioners voted to remove McBrien, but seven voted to let him keep his job.
To protect the public, the commission should grant very little leeway to these two judges – particularly since voters won’t get to render their own verdicts on O’Flaherty until 2012 and on McBrien until 2014.