The Derelict ‘Justice X’: When Did His or Her Dawdling Take Place?

Wednesday, April 2, 2025

Page 8

EDITORIAL

The Derelict ‘Justice X’: When Did His or Her Dawdling Take Place?

avid S. Ettinger, an accomplished attorney who is of counsel to the prestigious appellate law firm of Horvitz & Levy, has provided comments on our editorial last week criticizing the Commission on Judicial Performance (“CJP”). He writes:

A March 27 editorial makes some good points in criticizing the Commission on Judicial Performance for shielding from the public the identity of the appellate justice who egregiously delayed readying opinions. It is unfair, however, to suggest that the justice and his or her colleagues might have committed perjury in affirming compliance with the 90-day rule.

The rule requires that opinions be filed within “90 days after [a case] has been submitted for decision.” The key word is “submitted.” Under California Rules of Court, rule 8.524(h), a case is usually submitted only after oral argument.

The Commission report says the offending justice “issu[ed] opinions more than three years after each case was fully briefed and assigned to the justice.” It doesn’t say any opinion was issued more than 90 days after oral argument. Most likely the cases were not argued until the justice finally got around to preparing a draft opinion.

Unreasonable delays? Absolutely. Perjury? Most probably not.

ll that is known for certain is that the commission, in its annual report on actions taken in the preceding calendar year, released on March 26, tells of 11 private admonishments in 2024, with this summary as to one of them:

“An appellate justice delayed decision 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.”

Our March 27 editorial notes:

Art, VI, §19 of the California Constitution sets forth:

“A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.”

And Government Code §68210 provides:

“No judge of a court of record shall receive his salary unless he shall make and subscribe before an officer entitled to administer oaths, an affidavit stating that no cause before him remains pending and undetermined for 90 days after it has been submitted for decision.”

he MetNews proceeded to do some supposing: that a Court of Appeal justice delayed producing opinions after the matters were submitted. (We assume that Justice X is not a California Supreme Court justice. The close attention that body receives would seemingly preclude the matter of gross indolence on the part of one of its members going unnoticed—though conceivably not.)

Ettinger conjectures that the delay came after the cases were fully briefed and before oral argument. Maybe he’s right, and if he is, there would be no perjury in the form of justices turning in affidavits each month falsely attesting to having no cases pending for more than 90 days.

But it would remain that Justice X was in flagrant violation of Canon 3 of the Code of Judicial Ethics which requires that a judge “perform the duties of judicial office…diligently” and Canon 3(B)(8) which mandates that “[a] judge shall dispose of all judicial matters…promptly, and efficiently.”

Other canons are also violated in snubbing the 90-day rule. The CJP cited them in its 2007 decision in Inquiry Concerning Freedman, observing:

“Judges are employed by the state to decide cases; when they fail to do so without substantial justification, their failure tends to cast the judicial office into disrepute and to lower public esteem for the judiciary.”

oo, the situation, as Ettinger envisions it, would probably entail misconduct on the part of the presiding justice of the division or undivided district. Unless Justice X is himself or herself the presiding justice, Canon 3(C)(4) would come into play. It provides:

“A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to ensure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.”

And Canon 3(C)(1) says: “A judge shall diligently discharge the judge’s administrative responsibilities….”

The three-plus years of delay might well implicate the associate justices—though, for all we know, they promptly reported the foot-dragging to the CJP (as required by Canon 3(D)(1)), with the commission unduly delaying action on the matter.

The core facts are unknown, and shouldn’t be. In light of the outrageousness of the targeted justice’s misconduct and reasonable suspicions as to others being involved, the CJP cannot be said to have acted responsibly in keeping the facts and identities secret.

ttinger’s scenario suggests a conscious delay in the scheduling of oral argument (or offering the opportunity to orally argue) in order to accommodate and shield from scrutiny a procrastinating justice. That would amount to doing an end run around the 90-day rule.

Skirting the rule used to be commonplace. The California Supreme Court would take as long as it wished to decide cases after oral argument, utilizing the device of not filing an order of submittal until it was ready to release a decision. That was cheating.

The practice came to light during the televised “Tannergate” hearings before the CJP in 1979. High court justices were suspected of a politically motivated delay in the release of two decisions—People v. Tanner and People v. Hawkins—that would run contrary to the prevailing tough-on-crime popular sentiment. The cases were held back until after Nov. 7, 1978, the date on which the state’s highly controversial chief justice, Rose Bird, faced voters in a retention election. (Bird won at the polls in 1978 but was later recalled by voters. The commission found no grounds for disciplining any of the justices.)

In light of public criticism of the high court over regularly holding up submissions of cases, the practice was voluntarily dropped. Then came what is now rule 8.524(h) of the California Rules of Court, applicable to the Supreme Court:

“(1) A cause is submitted when the court has heard oral argument or approved its waiver and the time has expired to file all briefs and papers, including any supplemental brief permitted by the court. [¶] (2) The court may vacate submission only by an order stating the court’s reasons and setting a timetable for resubmission.”

Rule 8.256, which applies to the Court of Appeal, is to the same effect.

n its 1985 decision in Mardikian v. Commission on Judicial Performance, the Supreme Court made clear that the 90-day rule—which goes back to enactment of the present state Constitution in 1879—is not to be side-stepped. In the matter of a Fresno Superior Court judge, it said:

“[P]etitioner’s practice of routinely resubmitting matters which have been long delayed cannot be condoned. We assume, as does the Commission in its findings, that there may be extraordinary circumstances which will justify resubmission of particular cases that have been pending for longer than 90 days. To permit routine utilization of resubmission orders, however, would make a mockery of the constitutional mandate.”

If the division or undivided district in which Justice X sits has, in fact, delayed oral arguments, to the benefit of a laggardly jurist but to the detriment of the parties, it has been thwarting the objective of the 90-day rule. The end would be no different than if it had sequentially resubmitted a case to stretch out by years its time for producing a decision. We have difficulty seeing how this could be concluded to be other than willful misconduct.

he matter should not be considered to have been resolved by a two-sentence blurb in the CJP’s annual report. Whether the CJP has acted irresponsibly, as we perceive that it did, whether there has been perjury on the part of Justice X in filing false salary affidavits, and whether there has been a concerted effort by a court to get around the 90-day rule are questions that warrant attention.

Chief Justice Patricia Guerrero should institute a probe that might lead to promulgation by the Judicial Council of new rules relating to the CJP. The Senate and Assembly judiciary committees would do well to take a look at the matter. The Office of Attorney General ought to investigate the possibility of perjury.

Information as to the identity of Justice X is solicited.