Chutes and Ladders: The CJP & CJA

While lawyers may have only a vague idea that they exist, there are two important state commissions (outlined in the "Judicial" article of California's Constitution) that judges are very well-aware of. They hope one day to be called by one and pray never to receive a call from the other. These are the Commission on Judicial Appointments and the Commission on Judicial Performance. While these commissions are focused on judges, lawyers have important roles to play in their operations.

COJA. Established in 1934, the Commission on Judicial Appointments reviews and votes on (at public hearings) the Governor's candidates for appellate advancement (e.g., from superior court judge to Court of Appeal justice; or justice to presiding justice; or Court of Appeal to Supreme Court). COJA is comprised of three members: California's Chief Justice (i.e., Chief Justice Patricia Guerrero), who chairs the commission, the California Attorney General (i.e., AG Rob Bonta), and the most senior Presiding Justice of the Court of Appeal of the affected district. See Cal. Const., art. VI, § 7.

COJA hearings are lovefests, filled with laughter, hugs and tears of joy. Four categories of witnesses testify: First, "witnesses in support," i.e., a combination of friendly colleagues or mentors who share glowing information about the candidate's personal background and abilities. Second, any "witnesses in opposition" may be heard, though in practice this happens only very rarely. Third, a representative (usually the chair) of the State Bar Commission on Judicial Nominees Evaluation testifies about that group's evaluation. Finally, the nominee speaks, followed by questioning (usually the softest of softballs) from the COJA panel. The COJA members then vote and announce their decision, invariably in favor (with one astounding exception, which will be explored in a future 'Exceptionally Appealing' column). The nominee then often chooses to have the Chief immediately administer the oath of office, surrounded by friends and family.

COJA hearings typically last about an hour (though some are as speedy as 30 minutes) and are often convened in batches on the same morning or afternoon, are always open to the public, are broadcast live, and are recorded. In fact, there's a YouTube channel < https://www.youtube.com/playlist?list=PLJZN17NOuDI5Opjic5N5YK87WSH5ky8UH> for COJA "Confirmation Hearings" that has over 50 posted videos. Appellate nerds watch these religiously. Why? Apart from the Hallmark-movie feel-good emotions these hearings elicit, viewing can provide insight about appellate justices. Watching justices share personal stories and seeing them and their loved ones at an important life-defining moment helps personalize a future would-be tormentor at oral argument. To watch live, go to the California Courts Newsroom <newsroom.courts.ca.gov> on a hearing day for a webcast link.

CJP. Then there's the other commission (cue ominous segue ditty). Immediately following the COJA section in the State Constitution is the section on the CJP -- the independent state agency (established in 1960 as the "Commission on Judicial Qualifications" but renamed the CJP in 1976) that investigates complaints of judicial misconduct and judicial incapacity, and has the power to discipline judges. See Cal. Const., art. VI, § 8. The CJP's history page boasts that: "California was the first state to set up a permanent body to address judicial misconduct. Today there are comparable bodies in all fifty states and in the District of Columbia, many of which were initially modeled after 'the California Plan.'"

The 11-member CJP consists of one court of appeal justice (currently Justice Julia Kelety) and two superior court judges, "each appointed by the Supreme Court; two members of the State Bar of California who have practiced law in this State for 10 years, each appointed by the Governor; and six citizens who are not judges, retired judges, or members of the State Bar of California, two of whom shall be appointed by the Governor, two by the Senate Committee on Rules, and two by the Speaker of the Assembly." Cal. Const., art. VI, § 8.

Ten sections later, the CJP's powers are outlined: e.g., the CJP "may disqualify a judge from acting as a judge"; "shall suspend a judge from office without salary" when found guilty of felony; "may retire a judge for disability"; and "may censure a judge or publicly or privately admonish a judge." Cal. Const., art. VI, § 18; see also §§ 18.1, 18.5. In order of severity (and in order of likelihood), the CJP may dismiss a complaint; issue an advisory letter, private admonishment, public admonishment; censure; or order removal or involuntary retirement. The standard of proof in commission proceedings is clear and convincing evidence sufficient to sustain a charge to a reasonable certainty. Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 275 (1973).

The CJP meets about seven times a year at the commission's office in San Francisco in the Ronald M. George State Office Complex, the structure that houses the Earl Warren Building (i.e., the "old" wing at 350 McAllister Street completed in 1922, home to the California Supreme Court and First District Court of Appeal) and the 14-story Hiram W. Johnson State Building [the "new" wing, completed in 1988, at 455 Golden Gate Avenue]; the CJP is in suite 14400).

There is some constitutional overlap between the CJA and CJP in that section 18.5(c) provides that the latter "shall provide" the CJA "the text of any private admonishment, advisory letter, or other disciplinary action together with any information" that the CJP deems necessary for the CJA to consider regarding a judicial appointment.

How busy is the CJP? In 2024, it processed approximately 1,700 complaints (naming over 1,100 different judges). (And there were only 1,868 judgeships within the commission's jurisdiction.) See CJP 2024 Annual Report at 11. Of these, 1,600 were closed for lack of facts that might constitute misconduct, and another 71 were closed without discipline. Id. at 14. "In 2024, the commission removed one judge, publicly censured two judges, and imposed six public admonishments. The commission also issued 11 private admonishments and 19 advisory letters. ... [T]he commission closed five matters without discipline when the judge resigned or retired with an investigation pending." Id. at 15.

CJP stories relating to appeals are fairly sparse. In 2000, a San Diego superior court judge received public admonishment for making remarks--purportedly a joke made while golfing--to friends who had an interest in a $99 million punitive damages award pending on appeal. The judge said that he had learned from an appellate court justice that the appeal had been decided against them (i.e., implying that he was conveying inside information). These remarks were improper and resulted in motions for an evidentiary hearing and for recusal of the assigned appellate justices. Ultimately, the Supreme Court ordered the case transferred to another district to avoid any appearance of impropriety. See Judge Censured for Remarks on Outcome of Case, L.A. Times (Dec. 13, 2000).

As revealed by CJP "Private Discipline Summaries," other superior court judges have received private discipline for matters relating to appeals, e.g.:

(1) A judge treated attorneys who appealed a decision rudely, and made a comment in an order that undermined the judicial system's integrity;

(2) A judge made disparaging remarks in open court about the Court of Appeal;

(3) Before conducting a hearing directed by the Court of Appeal, a judge made angry remarks to counsel that suggested prejudgment and a lack of impartiality;

(4) A judge suggested in open court that a Court of Appeal order was improperly motivated;

(5) A judge improperly contacted attorney ex parte to discuss an appeal;

(6) A judge initiated ex parte communication with a lawyer, questioning the attorney about the attorney's appeal of the judge's order and alternatives to appeal that were available;

(7) After the Court of Appeal reversed a criminal conviction, the judge who had presided over the trial sent the prosecutor an ex parte email apparently intended to influence the prosecution to seek Supreme Court review;

(8) A judge disregarded Court of Appeal's request for a response in connection with a writ petition and then failed to comply with the Court of Appeal's order in the case;

(9) A judge impeded appellate review of one of the judge's rulings by refusing to sign an order for a transcript; and

(10) A judge wrote an article about an appellate decision before the decision was final.

Similarly, there has never been much CJP attention regarding appellate justices. When this column first addressed the CJP in an appellate context in 2019, there were only two appellate tales of note. See Supreme Removal, Daily Journal (June 4, 2019). That article discussed the 1977 involuntary retirement of 82-year-old Supreme Court Justice Marshall F. McComb (1984-1981; Supreme Court justice 1956-1977), retired for inability to perform his judicial duties based on "senile dementia." See, McComb v. Superior Court (CJP), 68 Cal.App.3d 89 (1977); McComb v. CJP, 19 Cal.3d Spec.Trib.Supp. 1, 564 P.2d 1, 138 Cal.Rptr. 459 (May 2, 1977).

Over two decades later, there was the well-known account of how the CJP, in 1999, voted 8-to-1 to dismiss charges against Court of Appeal Justice Anthony Kline for his dissent indicating that he would refuse to apply a particular binding precedent with which he disagreed. See Morrow v. Hood Communications, Inc. (1997) 59 Cal.App.4th 924, 926-31 (Kline, J., dissenting).

More recently, however, there has been more CJP activity of an appellate nature. Most notably, after many days of hearings and testimony from over a hundred witnesses, the CJP ordered Justice Jeffrey Johnson removed from office in 2020 for misconduct based on disrespectful treatment of women.

Most CJP appellate activity, however, seems focused on delay in resolving appeals. In 2022, Administrative Presiding Justice Vance Raye received public admonishment (via stipulation and agreement to retire) for administrative malfeasance, i.e., engaging in a pattern of delay in deciding around 200 appellate matters over a ten-year period (2011-2021).

Private discipline summaries related to appeals also reveal three advisory letters to appellate justices and one private admonishment regarding delay:

• An appellate justice delayed the decision in a matter. (Ann. Rept. (2018), Advisory Letter 3, p. 28.)

• An appellate justice delayed the decision in an appeal by finalizing an opinion in the case several years after the case was fully briefed and assigned to the justice. (Ann. Rept. (2020), Advisory Letter 3, p. 55.)

• An appellate justice delayed decisions in numerous matters by issuing opinions more than three years after each case was fully briefed and assigned to the justice. The delay in some of those appeals exceeded four years. (Ann. Rept. (2024), Advisory Letter 2, p. 62.)

• An appellate justice delayed decisions in several matters by issuing opinions more than three years after each case was fully briefed and assigned to the justice. In one matter, the delay resulted in actual prejudice to a party who was incarcerated unnecessarily. (Ann. Rept. (2024), Private Admonishment 2, p. 60.)

Most recently, in June, the CJP filed a formal proceeding regarding former Justice William Murray alleging (1) "neglect of duty and a pattern of chronic delay in deciding a significant number of appellate cases from April 2012 to January 2022," (2) failure "to accord calendar preference to six juvenile cases," and (3) failure to diligently discharge administrative responsibilities to supervise research attorneys to ensure prompt disposition of assigned cases. Inquiry Concerning Former Justice William J. Murray, Jr., CJP No. 211 (June 20, 2025).

The proceeding against Justice Murray -- and his departure from the court, as well as the departures of Justices Raye and Cole Blease -- appears to be a consequence of the work of Jon Eisenberg, the appellate lawyer who spent years compiling data and complaining about delay in the appellate courts, eventually filing CJP complaints in 2021. See Jon B. Eisenberg, "Why I Did It the Way I Did It: Going Public on the Third District Court of Appeal," 36:2 Cal. Litig. 8-12 (Sept. 2023).

The role of lawyers in commission work should be obvious. First, provide feedback about candidates to the various groups that make reports to COJA. Second, report judicial misconduct to the CJP. Perhaps easier said than done, but, as The Washington Post's slogan reminds us, "Democracy Dies in Darkness."