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SACRAMENTO — It’s too late to help Judge William Danser. But judges say an agreement reached last month between their lobbying group and the state’s judicial watchdog should help level the playing field in future discipline cases. Last month, the Commission on Judicial Performance agreed to rewrite its discovery rules to allow judges greater leeway to conduct discovery, including witness depositions, once charges have been brought. The agreement was prompted by a bill, sponsored by Assemblyman Mark Leno, D-San Francisco, that would have written judicial protections into state law. Leno shelved the bill as part of the compromise. “This is a significant step toward securing due process for judges,” said Eric Taylor, a Los Angeles County Superior Court judge who is president of the CJA. “The right of due process is a principle that judges, on a daily basis, are here to assure to the public. We were only looking for the due process rights that we are entitled to.” But it isn’t clear that the new rules will put an end to complaints from judges who are wary of the CJP’s power to upend their careers. “The commission promulgates its own rules, enforces its own rules, investigates the conduct of judges, appoints the special masters who may sit as the triers of fact in hearings and then passes on the discipline that should be imposed on the judges,” said James Murphy, who represents Danser and has represented several other judges in discipline cases. “How about some fairness going the other way?” While the commission was originally viewed as “pro-judge and anti-public,” that perception has “swung 180 degrees,” said Murphy, because of what he describes as “an aggressive campaign against judges in recent years.” According to commission statistics, the agency looked into 10 percent more complaints last year compared with the year before but disciplined fewer judges. Two sitting judges were removed in 2003, though, and none were removed in 2002. And in removing Contra Costa County Judge Bruce Van Voorhis, the commission relied heavily on findings that he had treated attorneys and litigants poorly. Murphy, who represented Van Voorhis, said judges now feel the commission is more apt to pursue complaints of judicial demeanor than was previously the case. “Judges are human beings,” he said. “A judge may find herself or himself confronted by a very aggressive litigant or lawyer, and if they somehow blow up at the lawyer or litigant, they think this commission will impose discipline on them.” The California Judges Association said it lobbied for the Leno bill because existing rules put judges at a disadvantage. “It didn’t seem fair to us,” said Mike Belote, a Sacramento-based lobbyist for the CJA. “Once formal charges have been filed, which happens only in a minority of cases, the judge can [now] ask for and obtain a subpoena or deposition, which we believe will give them an idea of what witnesses are going to say at the hearing.” After charges are filed, evidence is heard before a three-judge panel of special masters, who then forward findings to the 11-member commission, which can vote to admonish, censure or even remove a judge. The CJP had opposed Leno’s bill, arguing in testimony before the Assembly Judiciary Committee that giving judges discovery rights could discourage complaints against judges. “We’re not looking to do this to brow-beat or intimidate anyone,” said Edith Matthai, a Los Angeles attorney who has represented judges under commission investigation. She added that particularly in cases involving a judge accused of sexual harassment or inappropriate conduct, the case may turn on the broader context provided through discovery. The CJP’s arguments didn’t appear to sway committee members, who passed it out on a 9-0 vote to the Assembly floor two months ago, where it was approved 75-0. The bill was headed to the Senate when the compromise was struck. Victoria Henley, the commission’s director and chief counsel, said the commission will draft the new rules by late fall. But there’s a lingering dispute over the Legislature’s authority to dictate new rules. “The Constitution makes no reference to the Legislature having any role in promulgating rules for the commission,” said Henley, explaining one reason the compromise was preferable. Taylor and Mathai said their constituents wouldn’t rule out lobbying the Legislature for more discovery rights. “Our position was that the Legislature could make rules in this area, and in fact, was well on its way to doing that when the compromise was reached,” said Taylor. “We will continue to listen to our members around the state any time due process for judges is in question.” Henley said she viewed the new agreement as a watershed attempt to balance the needs of the bench and the concerns of the commission. One problem is that unlike a court, the commission won’t be able to adjudicate and resolve discovery disputes. “There is a lot to get ironed out,” she said. The CJP has removed only 20 judges since 1960. But it can cast a long shadow. “Any person can make a complaint, and where the commission decides to go with that is not always certain,” said Mathai. “Over the years, there have been questions about what the commission is interested in,” said Belote. “But in fairness, judges in the main believe the commission has done a pretty good job prioritizing. They are not bomb-throwers. They are just trying to exert their constitutional obligations.”

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