CJA Criticizes Proposed Rule on ‘Stinger’ Letters

Tuesday, March 19, 2013

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CJA Criticizes Proposed Rule on ‘Stinger’ Letters

By a MetNews Staff Writer

A proposed Commission on Judicial Performance rule governing the issuance of advisory letters fails to address legitimate concerns of the state’s judges, the president of the California Judges Association said yesterday.

In an 18-page response to the commission’s request for comment, Alan D. Hardcastle said the proposed amendment fails to make clear that a judge cannot be disciplined for pure legal error.

Advisory letters, long known as “singer” letters, are a form of private discipline. While they represent the least onerous form of discipline available to the commission, they have serious consequences in that they may be used to aggravate punishment for future misconduct and may be disclosed to the appointing authority when a judge seeks elevation to a higher court, Hardcastle noted.

They are the most common form of discipline, and the number issued has been rising steadily, the judge added.

“Along with the increase in the number advisory letters issued by the commission, there has been a corresponding increase in complaints from our membership that the commission is initiating staff inquiries and preliminary investigations, and issuing advisory letters for legal error alone, Hardcastle wrote. “Members have also complained about the tone of many of these letters and of the procedures leading to their issuance. Specifically, Judges are being asked to respond to allegations without first being provided the factual basis for the allegations. CJA considers such procedures fundamentally unfair. “

Rather than amend its rules to specify that an advisory letter may not be issued for pure legal error, Hardcastle explained, “the commission proposed an amendment that merely codifies current policy” and “rejected...outright” CJA’s proposed rule allowing a judge to request corrections of any misstatements in an advisory letter.

CJA has proposed that the commission adopt a new rule 111.4, including the following:

“The Commission shall not issue an advisory letter to a judge a rising from or based upon legal error unless there is clear and convincing extrinsic evidence that the judge committed that act as a result of bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any other purpose other than the faithful discharge of judicial duty. The fact that a judge’s decision has been overturned on writ or appeal, including on grounds that there was a prejudicial abuse of discretion, shall not be a sufficient basis for the issuance of an advisory letter without additional evidence that the judge acted for an improper purpose.”

The rule is necessary, Hardcastle said, because:

“Preventing judge[s] from improperly being disciplined for mere legal error is not a trivial concern,” he wrote. “It goes to the very heart of judicial independence.”

CJA members, he said, believe the commission has been ignoring Oberholzer v. CJP (1999) 20 Cal.4th 371, which held that a judge could not be disciplined merely because the commission believes he erroneously interpreted the law.

“[A] judge must be free not only to make the correct ruling for the proper reasons, but also to make an incorrect ruling, believing it to be correct,” the Supreme Court wrote in that case.