February 19, 2009

Ask The Lawyer

Cranky judges may be held to account

This week's question:
I was in a court trial a few months ago and the judge was just terrible. I mean he was rude, arrogant and downright nasty to my attorney. I complained to my attorney repeatedly at the time but she said there was nothing she could do. She didn’t want to make the judge more upset since the judge was judging our case at the time. Is there any recourse in this situation?

Justin J.
Almaden Valley


Dear Justin,
There is something you can do, but first, a few introductory comments.

It seems to me that your trial lawyer did the right thing by not complaining to the judge during your trial. She obviously thought that this could inflame the judge, and you don’t want the judge upset who is hearing your case. Most of us try to bend over backwards to be courteous and respectful to the judge at all times, even when it is difficult.

Having said that, there is something that you can do and maybe should do in view of that behavior by the trial judge. And that is to file a complaint with the California Commission on Judicial Performance. Perhaps that particular judge did not exhibit the proper “temperament.”

I can honestly say that in all my years of practice that I have been favorably impressed by our judges and have very rarely seen instances of improper temperament. Almost all of our judges are courteous, respectful and fair in their conduct of all proceedings that come before them. I am sure being a judge is not an easy job, but sometimes things happen that shouldn’t happen.

Back to the Commission on Judicial Performance, or “CJP” for short in legal jargon. The CJP was established by legislative constitutional amendment in the November 1960 election. The provisions establishing the commission were part of a package of judicial administration reforms, at the time heralded as “real protection against incompetency, misconduct or non-performance of duty on the Bench.”

California was the first state to set up a permanent body to address judicial misconduct. The commission is responsible for the investigation of complaints of judicial misconduct and incapacity and for the discipline of judges, former judges, court commissioners and referees.

The commission’s mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system. An effective method of disciplining judges who engage in misconduct is essential to the functioning of our judicial system. Commission proceedings provide a fair and appropriate mechanism to preserve the integrity of the judicial process.

Anyone may submit a complaint to the commission. Of course, if your only complaint is that you lost your case, it is doubtful that you would have grounds for a complaint of this nature. If your only complaint is that you lost at trial, you may want to look into an appeal if there are grounds for an appeal and it is not too late.

Let us assume that you have proper grounds for a complaint. You would first file a complaint with the Commission on Judicial Performance at 455 Golden Gate Ave., Suite 14400, San Francisco, CA 94102. You will want to include the following information:

- The court in which the judge sits
- The names and telephone numbers of any witnesses to the events described
- The date or dates on which the conduct occurred
- The type of court case involved and your relationship to the case

After an investigation, the Commission will make a decision. Judicial misconduct usually involves conduct in conflict with the standards set forth in the Code of Judicial Ethics. Some examples of judicial misconduct are rude or abusive demeanor, conflict of interest, abuse of the contempt power, communicating improperly with only one side to a proceeding, delay in decision-making and commenting on a pending case.

If the commission finds that an offense has been committed, various levels of discipline may be imposed. Discipline includes private admonishment, public admonishment, public reproval, public censure and even removal from the bench as a judge. From time to time we hear or see in the media about judges who have gone astray.

You can obtain a great deal of additional information by visiting the Web site of the commission on Judicial Performance. Just enter: www.cjp.ca.gov/. Topics include how to file a complaint, pending cases, case statistics, and FAQ’s. Of course, this Web site is publicly supported and part of our California government.

Consumers do have rights, Justin. And one of those rights is to register a complaint for that kind of behavior. Maybe your complaint will make it better for others in that courtroom in the future.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.