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Judicial Misconduct: Judges Behaving Badly
MCLE Self Study
Edited by Barbara Kate Repa

Judicial Misconduct:Judges Behaving Badly
By Michael Paul Thomas

Socrates said, "Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially." ?Put a bit less laconically, the court in People v. Black (150 Cal. App. 2d 494, 500-01 (1957)) nicely summarized the standards every judge should meet:

"A judge should be temperate, attentive, patient, impartial. A judge should be courteous to counsel, especially to those who are young and inexperienced, and also to all others appearing or concerned in the administration of justice in the court."

"A judge may properly intervene during the trial of a case where this appears reasonably necessary in order to expedite proceedings, for clarification of any point, or to prevent injustice. ... Litigants, witnesses, and attorneys alike are entitled to have a court function as a court of justice in fact as well as in theory."

"In exercising the firmness necessary to the dignity and efficient conduct of court proceedings, a judge's attitude should not reflect undue impatience or severity toward either counsel, litigant, or witnesses."

"Justice should not be molded by the individual idiosyncrasies of those who administer it. A judge should adopt the usual and expected method of doing justice, and not seek to be extreme or peculiar in his [or her] judgments, or spectacular or sensational in the conduct of the court."

Failure to meet these and the other standards set forth in the current California Code of Judicial Ethics may be considered misconduct--and if prejudicial during a trial, may require a mistrial, a new trial, or reversal on appeal.

Types of Judicial Misconduct
Examples of specific types of judicial misconduct are examined here.

Discourtesy or intemperance. Displays of judicial intemperance constituting misconduct can take many forms.

It is clearly misconduct for a judge to insult, ridicule, or disparage counsel, the parties, jurors, or witnesses in a case; patience, dignity, and courtesy are required instead. (Cal. Code of Jud. Ethics, Canon 3B(4).) Thus, a judge was deemed to have committed willful misconduct when he expressed disbelief in a defendant's testimony by making a "sound commonly referred to as a 'raspberry.' " (Spruance v. Commission on Judicial Qualifications, 13 Cal. 3d 778,789 (1975).) A judge's characterization of an attorney's questions as "silly," "idiotic," "trivial," and lacking even a "scintilla of sense" has been deemed "so far beyond the pale of judicial fairness as to render a new trial necessary." (People v. Mahoney, 201 Cal. 618, 626 (1927).)

And a judge's characterization of a party's proof as "washing dirty linen" and "wasting the court's time" has also been held to be prejudicial misconduct (Webber v. Webber, 33 Cal. 2d 153, 157 (1948)); as have "highly inflammatory" and irrelevant references to a plaintiff's immigration status (Hernandez v. Paicius, 109 Cal. App. 4th 452, 460 (2003).)

Of course, judicial discourtesy or intemperance must be distinguished from exercising firm control. For example, it is well within a court's discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court's instruction (2003).) Similarly, a judge may properly reprimand an attorney in the jury's presence for making disparaging comments toward the court, opposing counsel, or a witness. (People v. Chong, 76 Cal. App. 4th 232, 244 (1999).)

Bias or prejudice. Obviously, a court commits misconduct by exhibiting bias or prejudice against any individual or class of people, including bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. (Cal. Code of Jud. Ethics, Canon 3(B)(5); see also, Catchpole v. Brannon, 36 Cal. App. 4th 237, 249 (1995).)

Instructive as to how judicial bias may be shown and how that will warrant reversal is the case of In re Marriage of Iverson (11 Cal. App. 4th 1495 (1992)), which held that a judge's gender-based preconceptions deprived the female litigant of a fair trial in a marital dissolution action. In finding against the wife on several issues, the judge in Iverson remarked that the wife, a "lovely girl," had "nothing going for her except for her physical attractiveness." (Iverson at 1498.) His reasoning appears to have been that "lovely" women are the ones who ask wealthy men who do not look like "Adonis" to marry, and therefore the wife was not credible when she testified that the husband asked her to marry him. (Iverson at 1500.) Referring to the fact that the couple were living together before their marriage, the judge commented, "And why, in heaven's name, do you buy the cow when you get the milk free?" (Iverson at 1499.)

Perhaps surprisingly, courts have ruled that even attorneys are entitled to some similar consideration for their profession. Consider Hall v. Harker (69 Cal. App. 4th 836 (1999)), a case in which the judge made numerous disparaging statements about attorneys that were held to deny the defendant a fair and impartial trial in violation of his right to due process. For example, the judge stated: "[A]n appropriate learning tool for attorneys is for them to be on the witness stand for some time and to be grilled unmercifully so they can learn how it feels and possibly be a bit more sympathetic on whom they inflict their terror."

Other gems uttered by the judge in Hall included: "Pulling things out of hats is what attorneys do for a living"; and "Attorneys are somewhat like firedogs ... the fire bell rings and they jump around and bark, and sometimes even in excitement urinate all over and behave in an inappropriate fashion. ..." (Hall at 842.)

Impairing examination of witnesses. Although a judge may not, of course, choose sides in a trial, his or her function "is much more than that of a plate umpire at a baseball game calling balls and strikes." Rather, "it is the right and duty of a judge to conduct a trial in such a manner that the truth will be established in accordance with the rules of evidence." (People v. Lillard, 219 Cal. App. 2d 368, 374 (1963).)

Consequently, a judge is vested with the authority to examine witnesses, and even to call witnesses to testify. However, a judge commits misconduct when he or she unreasonably interferes with or improperly participates in examining witnesses. (Cal. Judges Benchbook: Civ. Proceedings-Trial ?5.98 (CJER 1997); see also, People v. Burns, 109 Cal. App. 2d 524, 542-52 (1952) [judge frequently interrupted attorney's questions of witness to express objections, lectured attorney about trying to impugn witness's integrity, and unreasonably curtailed attorney's cross-examination of witness].)

Finally, a judge should maintain an aura of impartiality by asking any questions of witnesses after the conclusion of all examination by the attorneys. (Karwoski v. Grant, 30 Cal. App. 2d 171, 178 (1938).)

Improper comments on evidence. Although a judge has broad discretion in commenting on evidence, any comments must be "temperate rather than argumentative." The line is sometimes hard to draw and depends on "the context and extent of the comments and the peculiar circumstances under which each comment is made." (People v. Cook, 33 Cal. 3d 400, 409 (1983).)

In Lewis v. Bill Robertson & Sons, Inc. (162 Cal. App. 3d 650, 654 (1984)), the judge's comments after closing arguments in a personal injury trial that "no defect in this premises had anything to do with [the plaintiff's] fall" and that his arm had "healed perfectly" so "where is there any horrendous pain and suffering?" were improper. The court also held that the error was not cured by repeated admonitions that the jury was free to disregard the judge's views.

A judge may "make such comment on the evidence and on the testimony and credibility of any witness as ... is necessary for the proper determination of the cause." (Cal. Const. Art. VI, ?10; People v. Santana, 80 Cal. App. 4th 1194, 1206 (2000).)

However, judges may not withdraw evidence from the jury's consideration or distort the testimony; and they must inform the jurors that they are the exclusive judges of all questions of fact and of the credibility of witnesses. (People v. Proctor, 4 Cal. 4th 499, 557 (1992) [any comment on or interpretation of evidence should include a statement that it is the judge's opinion and that the jury is free to disregard such comments]; and see Cal. Code of Civ. Proc. ?608.)

Partiality and prejudging. A judge commits misconduct by showing partiality for or
against a party. (Iloff v. Purity Stores, Ltd., 178 Cal. App. 2d 1, 4 (1960) [in slip-and-fall case judge interjected, "[T]hese floors are all right. I will vouch for that"].) Furthermore, a judge should guard against conveying partiality through wordless conduct such as a dismissive gesture, look of disbelief, or bored closing of the eyes. (People v. Harmon, 7 Cal. App. 4th 845, 852 (1992).)

In short, "judges presiding at trials should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other." (People v. Burnett, 12 Cal. App. 4th 469, 475 (1993).)

A judge also commits misconduct if he or she prejudges a case. (See Murr v. Murr, 87 Cal. App. 2d 511, 517-18 (1948) [before trial the judge advised attorneys there was "no point" in the husband denying paternity, and soon after the trial started he said: "You both know what is going to happen, so let us get through as quickly as possible"].) Generally, judges should be circumspect about making any comments before the parties have completed the presentation of their evidence. (Cal. Judges Benchbook: Civ. Proceedings-Trial ?5.96 (CJER 1997); see also, Fletcher v. Commission on Judicial Performance, 19 Cal. 4th 865, 899 (1998) [judge improperly commented he had dealt with the witness before and "his credibility was not too high"].)

Receiving evidence out of court. A judge commits misconduct by independently receiving evidence out of court during a trial. (Cal. Code of Jud. Ethics, Canon 3B(7).)

For example, in Guadalupe A. v. Superior Court (234 Cal. App. 3d 100 (1991)), the judge in a custody dispute committed misconduct by meeting the child at a social function and carrying her away from her foster mother to see whether the child suffered from "stranger anxiety."

Similarly, in Ryan v. Commission on Judicial Performance (45 Cal. 3d 518 (1988)), the judge was found to have acted improperly when in the midst of a criminal trial on a hit-and-run accident, without notice to the parties, he directed the bailiff to contact a local auto dealer's parts manager to obtain a rear light lens for the type of vehicle driven by the defendant to compare it with trial evidence; then when the trial resumed, he interrupted the defense case and called the parts manager as the court's own witness.

Coercing waiver of a right. A judge commits misconduct by coercing the waiver of a substantive or procedural right. (7 Witkin, Cal. Proc. Trial ?259 (4th ed. 1997).) For example, a judge may not coerce a party to give up the right to call a witness whose testimony is relevant and proper. (See Pratt v. Pratt, 141 Cal. 247, 250 (1903) [judge stated, "I don't know anything that would condemn your client in my eyes so completely as to put that girl on the stand to testify against the mother.") Nor may a judge present a closing argument to the jury. (See Shippy v. Peninsula Rapid Transit Co., 197 Cal. 290 (1925) [such impermissible behavior need not be obvious, but may consist of mere "suggestions" by the judge].)

Coercing settlement. Although a judge should encourage settlements, it is misconduct for him or her to coerce a party to settle a lawsuit. (Rosenfield v. Vosper, 45 Cal. App. 2d 365, 370 (1941) [misconduct in nonjury case for judge, before hearing any of defendant's witnesses, to advise parties it would be "in their best interests" to settle].)

Ex parte communications. A judge commits misconduct when he or she engages in ex parte communications with parties, witness, or members of their families. (Cal. Code of Jud. Ethics, Canon 3(B)(7).)

Coercing or improperly communicating with the jury. A judge also commits misconduct if he or she usurps the fact-finding function of the jury. Thus, intimidation and veiled threats that cause a jury to return a verdict it would otherwise not return constitute prejudicial error. (Langdon v. Superior Court of Riverside Cty., 65 Cal. App. 41, 43 (1923).) Likewise, a jury must not be coerced into reaching a verdict. (Cook v. Los Angeles Ry. Corp., 13 Cal. 2d 591 (1939).)

Public comments about pending matters. Finally, a judge commits misconduct if he or she makes any public comment about a pending matter that might substantially interfere with a fair trial or hearing. (Cal. Code of Jud. Ethics, Canon 3(B)(9).)

Responses to Judicial Misconduct The overwhelming majority of judges certainly live up to the letter, as well as the spirit, of the ideals articulated by Socrates and the rules contained in the Code of Judicial Ethics. Yet on those relatively rare occasions when a judge's conduct does impair a party's right to a fair proceeding, attorneys must be prepared to act to protect their clients' rights.

A claim of misconduct by a judge must ordinarily be raised at the trial by objection, assignment as error, or motion for mistrial; otherwise, it is waived. (7 Witkin, Cal Proc. Trial ?255 (4th ed. 1997).)

However, an objection may not be necessary when the judge's conduct is so prejudicial that it cannot be cured by an instruction to the jury. (See Etzel v. Rosenbloom, 83 Cal. App. 2d 758 (1948).) Furthermore, there is also no waiver when the attorney does not repeatedly object to the judge's continuous pattern of improper conduct. (See People v. Robinson, 179 Cal. App. 2d 624, 637-38 (1960).)

When judicial misconduct occurs, an appropriate instruction by the judge to the jury will ordinarily dispel its prejudicial effect. (7 Witkin, Cal Proc. Trial ?255 (4th ed. 1997); see Cal. Judges Benchbook: Civ. Proceedings-Trial ยงยง 5.106, 5.107 (CJER 1997).)

In any event, a request for a curative instruction is not required to preserve the issue for appeal. (Delzell v. Day, 36 Cal. 2d 349, 351 (1950).)
Michael Paul Thomas (, a private practitioner in Newport Beach, is the author of California Civil Courtroom Handbook & Desktop Reference (West, 2006) and coauthor with Justice Eileen C. Moore of the six-volume California Civil Practice (West, 2006).

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