Quite a few people are not aware of their rights, at the T.L.R.C. we are only here to inform you that there is more to the First Amendment then you have been led to believe: 

The first amendment of the uNITED States constitution says in part:

“Congress shall make no law respecting... the right of the people to... petition the government for a redress of grievance.”

The supreme Court of the uNITED STATES agree:

"The ability to place a lien upon a man’s property, such as to temporarily deprive him of its beneficial use, without any judicial determination of probable cause dates back not only to medieval England but also to Roman times." United States Supreme Court, 1968, Sniadach v. Family Finance Corp., 395 U.S. 337, 349

Supported by the California Supreme Court, 1971, Randone v. Appellate Department, 5 C3d 536, 96 Cal Rptr 709 and 488 P2d

 

State of Idaho v. Horiuchi

... towards the gen- eral government. . . . If [the people's] rights are invaded by either, they can make use of the other as the instrument of redress. Page 3. ... http://news.findlaw.com/hdocs/docs/rubyridge/idhoriuchi60501.pdf

Highlights ours

 

      The LEGAL REDRESS  Commission (T.L.R.C.)
                         The Commercial LIEN PROCESS (T.C.L.P.)

LEGAL REDRESS

Verified Compliant

Commercial Lien

Commercial Affidavit

NOTICE OF DEFAULT

Amended Verified COMPLAINT

NOTICE OF INTENT

COMMERCIAL LIEN, PURSUANT (in addition)

Civil RightsLaws

Coloring Agreement

Filed Documents

Not following their own rules

Documents I Filed

Filed Court Documents

Rights of green card holders

  (To get more useful info visit the following sites: legal- http://legalies.tripod.com/legal

          http://legalies.tripod.com/legalredress

          http://ucc.idiots.tripod.com

          Coming soon http://t.l.r.c.tripod.com

As of December 21, 2006 we averaged 1138 visit to our site we appreciate all of your interest. 1138 and we do not advertise. 

In February we will relocate to the world wide web and we will advertise. E-Mail us and ask how you can either help or join our team vodier@netzero.net 

                                                                                                Attach this to subject section of e-mail "T.L.R.C. INQUIRE"

 

As of February 15, 2007 we will be assisting those who need help registering LIEN’S

with the credit bureaus, to do just that. Please read the following service agreement,

and if it seems like something, you would like to engage in, please

copy agreement (do not alter or omit {must contain letter head}),

and mail to the following address (AFTER FEBRUARY 24TH 2007):

                        T.L.R.C. Att: Jones  P.O. Box 343; Sch’dy, NY., 12301 

We will also provide a service to stop creditors from harassing Citizens...  As the process continues more updates will follow in FEB 2006 please be patient......)  A lot of new information added 02-24-07!!!!!!!!!!!!!!!!!!!

                    The Legal Redress Commission     

 

 

 

 

 

                        T.L.R.C.

                        Jones

                     P.O. Box 343

                   Sch’dy, NY., 12301  

EACH OF YOUR COMMERCIAL LIEN DOCUMENTS (THAT WILL BE SENT TO THE DEBTOR,

YOU ARE THE SECURED PARTY) MUST CONTAIN THE STATEMENT

""THIS IS AN ATTEMPT TO SECURE AND OR COLLECT A DEBT,

ANY AND ALL INFORMATION OBTAINED WILL BE USED FOR SUCH

PURPOSES"

 

 

                 The Legal Redress Commission     

                                                                                                                                                                                                                         T.L.R.C.  Att:  Jones 

                                                                                                                                                                                                                            PO BOX 343 

                                                                                                                                                                                                                       SCH’DY, NY., 12301                                     

                                                                                                                                                                                            

                                                                 

 

 

 

 

 

       A DEBT COLLECTION AGENCY                                           

                                                                        Where we do what others refuse to…….

 

                              Service Agreement                                         

                                                                              The Legal Redress Commission will process documents, such as:

 

1.      Uniform Commercial Code Financial One Statement

2.      Recording it through credit bureaus

3.      Storing the documents on the internet

4.      Contacting the credit bureaus once every 60 days to make sure reporting continues

5.      To keep you up to date regarding any changes in procedures. 

6.      Provide basic assistants in lawsuits

7.      Direct you as to where you can find The Commercial Lien outline. 

8.      Provide all fees upfront

9.      However [Y]ou will have to do your own homework, because this is a legal process [Y]ou will have to be aware of the possibilities of having a judge interfere with this process, and that any such attempts to interfere with your local right to process and Redress your Grievance; will RESULT IN THE  filing of a Commercial Lien against that particular official. 

 

However we must state that we do not and will not complete Commercial LIEN forms for you.  Those documents deal with your situation, and each situation is unique to the individual issue.  For instance some people have been wronged by hospitals, others by lawyers, others by police officers, and so forth.  That means that each Commercial Lien document must contain only the pertinent information. 

 

At this time we will not process documents alleging conflicts with judicial officials, meaning judges.  Unless a judge attempts to interfere with your right to process your Commercial Lien document.  Over eight years of research has gone into this process, the uNITED STATES constitution has been in existence for well over 200 years, and the first amendment has not been changed or amended.  The First Amendment can never be changed, it is the only Constitutional Amendment that is guaranteed to remain unchanged for as long as the uNITED STATES exists as a nation. 

 

{This is a very powerful weapon, but as indicated in the past, just because someone has a weapon does not mean that they know how to use it.  For instance you will not use a machine gun to kill a Mosquito.  So here at The Legal Redress Commission (T. L. R. C.), WE will not handle any claims in excess of $200,000.00}

There are two reasons for this; first it is necessary that [Y]ou get some means of redress.  Second, we also want to assure that [Y]ou will receive some sort of compensation.  We will be aggressive, and we will make sure that the liens remain on such properties.  [Y]ou will however be responsible for the following:

1.      Going to the hall of records before the city clerk where the individual resides (home) that you have a claim against.  And getting their correct property address (to include any and all properties owned by that individual, and or company). 

2.      [Y]ou are responsible for processing a Commercial Lien documents, getting them notarized, and sent out within their proper increment times.  The Commercial Lien process is roughly a 90 day procedure, and we will require that you provide proof that documents were sent certified, and or by delivery confirmation mail.  Please keep in mind that documentation is everything, and we will not process your documents without [Y]our providing us proof that [Y]ou followed the process. 

3.      We will only accept documents forwarded to us in the following manner; data disk CD ROM, e-mail zip file, or U.S. postal delivery on flash disk. 

4.      It will be [Y]our responsibility to keep [Y]our original copies of documents, and you must do so in a secure location. 

5.      At The Legal Redress Commission (T. L. R. C.)we’re not out to take your money, however OUR base fee is $475.00. Because this is a process we will not take on your case unless you have completed the above mentioned steps. This is not only to protect OUR interests, but for [Y]ou to protect [Y]our’s. Please, please, …….please do your homework! Visit the reference web sites listed at Http://legalies.tripod.com

6.      At The Legal Redress Commission (T. L. R. C.), we do not assume your responsibility; we are an avenue, a means to help achieve an end. 

    Copy of photo ID accompanying service agreement required

           For detailed information, you may visit the following website;

         Http://legalies.tripod.com

                    At The Legal Redress Commission (T. L. R. C.) we will not lie, cheat, steal, falsify, mislead, misdirect, or advocate untruthfulness OF ANY KIND or on any document. Our goal is to be truthful, upfront, as well as set the pattern for “Good Faith”. This process is a process that is done in “Good Faith”, and it’s important that we advise our clients of that fact!

This agreement must be signed and dated

This agreement was executed or entered into on or about the____ day of _________________ 200__.

X_____________________________                          

                       Client                                                                                       

   (Print name here)_______________________

Notary of your signature not necessary but acceptable.

This EXPLANATION SHEET is to be attached to all Commercial Affidavits, including Affidavits of Obligation (Commercial Liens), which are non-judicial consensual processes which arise out of a breach of special performance (e.g., for public officials’ breach of oath of office, a violation of the Constitution for the United States of America and respective state Constitutions.) Violation of contractual obligation:  

The notice as follows below is included for the purposes of FULL DISCLOSURE (UCC), and as a warning noted by the flag for commercial grace at the top of the instrument.

* * * * * * * * * * * *

COMMERCIAL AFFIDAVIT

AFFIDAVIT OF NOTICE, DECLARATION, AND DEMAND

FAIR NOTICE AND WARNING OF COMMERCIAL GRACE

IS A U.S. S.E.C. TRACER FLAG, NOT A POINT OF LAW

A SECURITY (15 USC)
COMMERCIAL AFFIDAVIT
 IS A U.S. S.E.C. TRACER FLAG
NOT A POINT OF LAW* 

WITNESS my hand this ____ day of ________________, 200_ /s/___________________________

[name], SUI JURIS

STATE OF NEW YORK

COUNTY OF SCHENECTADY

)
)
)

:ss

On this _____day of _________, 200__, before me,__________________________ , the undersigned Notary Public in and for the State of New York, appeared (Print Name)________________________, proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed within this instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that his signature on this instrument is true, correct and certain.

Witness my hand and official seal:

SEAL OF NOTARY

/s/______________________________
SIGNATURE OF NOTARY PUBLIC

 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

 

The Legal Redress Commission (T. L. R. C.)

Form 000166sg                                                                                                                                                                                                            08/06

 

 

 

 

IN THE SUPREME COURT OF CALIFORNIA

 

 

 

 

 

THOMAS B. FLETCHER, a Judge of            )

the Superior Court,                      Petitioner,  )      S058378

                                                    )

                                                  )

v.                                               )

                                                                  )

                                                                  )                              

COMMISSION ON JUDICIAL                     )                       PERFORMANCE,                                     

                                                                          )

                                                                         )

                                                    Respondent.)                           

                                                                         )

                                                                        )

 

 

THE COURT:

 

 

Judge Thomas B. Fletcher of the Madera Superior Court has petitioned for review of the recommendation of the Commission on Judicial Performance (Commission) that we remove him from office for willful misconduct and

“conduct prejudicial to the administration of justice that brings the judicial office into disrepute” (prejudicial misconduct).  (Cal. Const., art. VI, § 18, former subd.

(c) (former subdivision (c)), see now art. VI, § 18, subd. (d).)1   Judge Fletcher

 

(petitioner) concedes that he committed some of the misconduct underlying the

 

 

 

 

 

1               In 1994, by approving Proposition 190, the voters significantly changed the procedure for disciplining judges under article VI, section 18, of the California Constitution.  Because the conduct at issue here occurred before the constitutional amendments took effect on March 1, 1995, we apply the former version of article

VI, section 18.  (Dodds v. Commission on Judicial Performance (1995) 12 Cal.4th

163, 168, fn. 1 (Dodds).)


 

recommendation and that “his actions call for severe censure.”  However, he contests many of the Commission’s misconduct findings and argues that removal

“is inappropriately harsh under the facts” of this case.  Having independently reviewed the record, we find clear and convincing evidence to sustain all but one

of the Commission’s misconduct findings.  Moreover, although some of the

 

incidents of misconduct may seem relatively minor, many unquestionably are not, and the record as a whole establishes a persistent pattern of misconduct that

reflects a lack of judicial temperament.  Accordingly, we adopt the Commission’s removal recommendation.

I.  PROCEDURAL BACKGROUND

 

In 1988, petitioner was elected, and then appointed, as Judge of the Sierra Justice Court in Madera County.  He was later reelected to that office for a term beginning in January 1995.  However, at that time, he became a municipal court judge of the Sierra Judicial District by operation of Proposition 191.  By virtue of court consolidation on July 1, 1998, while this matter was pending, petitioner became a judge of the Madera Superior Court.

In February 1995, the Commission voted to initiate formal proceedings against petitioner.  It later prepared a notice of formal proceedings alleging numerous counts of either willful or prejudicial misconduct, and two amended

notices of formal proceedings.  On February 20, 1996, before three special masters this court appointed, an eight-day hearing began on the charges in the

Commission’s second amended notice of formal proceedings, which alleged

nineteen counts (many with subcounts) of either willful or prejudicial misconduct. The special masters filed their final report with the Commission on June 4, 1996, finding that petitioner had committed either willful or prejudicial misconduct in a number of the instances alleged.

 

 

 

 

 

 

 

 

2


 

After hearing oral argument as scheduled on August 22, 1996, the Commission ordered the case submitted.  Petitioner, who failed to appear on August 22, moved to vacate submission, explaining that he had received a letter containing the notice of the August 22 argument but never opened it.  The

Commission granted the motion and held argument on October 23, 1996.  It issued

 

its decision and recommendation on January 10, 1997.  Seven members of the Commission voted to recommend petitioner’s removal from office; the remaining three members voted for severe public censure.  Petitioner filed his petition with

this court in July 1997.2

 

II.  APPLICABLE LEGAL STANDARDS

 

As relevant in this case, former subdivision (c) authorized removal of a judge from office for “willful misconduct in office.”  Willful misconduct is “unjudicial conduct committed in bad faith by a judge acting in his judicial

capacity.”  (Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d

 

778, 795 (Spruance).)  As we recently explained in Broadman v. Commission on

 

Judicial Performance (1998) 18 Cal.4th 1079, 1092 (Broadman), to support a

 

finding of bad faith, the evidence must establish that the judge performed a judicial act (1) “for a corrupt purpose (which is any purpose other than the faithful

discharge of judicial duties),” or (2) “with knowledge that the act is beyond the judge’s lawful judicial power,” or (3) “that exceeds the judge’s lawful power with

a conscious disregard for the limits of the judge’s authority.”

 

Former subdivision (c) also authorized removal of a judge from office for prejudicial misconduct, i.e., “conduct prejudicial to the administration of justice

that brings the judicial office into disrepute.”  Prejudicial misconduct includes acts

 

that a judge “undertakes in good faith but which nevertheless would appear to an

 

 

 

 

2               Resolution of this case has been delayed significantly by repeated filing extensions that petitioner requested so that he could address the numerous misconduct counts underlying the Commission’s removal recommendation.

 

 

3


 

objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office.”  (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 284, fn. omitted.)  It also includes “wilful

misconduct out of office, i.e., unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity.”  (Id. at p. 284, fn. 11.)  “In this context, bad faith means a culpable mental state beyond mere negligence and consisting of

either knowing or not caring that the conduct being undertaken is unjudicial and prejudicial to public esteem.  In sum, to constitute prejudicial conduct, a judge’s actions must bring ‘the judicial office into disrepute,’ that is, the conduct would appear to an objective observer to be prejudicial to “public esteem for the judicial office.”  [Citation.]”  (Broadman, supra, 18 Cal.4th at p. 1093.)

In reviewing the Commission’s removal recommendation under former subdivision (c), we may consider only those misconduct charges that the Commission has sustained.  (Broadman, supra, 18 Cal.4th at p. 1089.)  We independently review the evidentiary record and will sustain the charges of misconduct only if clear and convincing evidence proves them to a reasonable certainty.  (Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d

297, 314 (Kennick).)  We give ‘special weight’ to the special masters’ factual determinations, because they “had the advantage of observing the demeanor of the various witnesses.  [Citations.]  In addition, in recognition of the Commission’s expertise, we accord ‘great weight’ to the Commission’s conclusions of law.

[Citations.]”  (Dodds, supra, 12 Cal.4th at p. 168.)  Based on our factual findings and legal conclusions, we then determine independently what, if any, discipline is appropriate.  (Id. at pp. 168-169.)

III.  SPECIFIC CHARGES

 

As we have noted, petitioner concedes he committed prejudicial misconduct

in some instances.  However, he challenges many of the Commission’s findings of prejudicial misconduct and all of its findings of willful misconduct.  Because they

 

 

 

 

4


 

are relevant to the proper level of discipline, we first briefly summarize the uncontested charges.  We then consider the contested charges.

A.  Conceded Prejudicial Misconduct

 

1.  Count Four:  Improper Entry of Judgment Against Nonparty

 

On November 30, 1992, in a small claims matter involving construction work done on property, judgment was entered for Thorn Hertwig against Tyrone

Henderson as agent for Rickey Henderson.  In January 1993, Hertwig amended his claim to add Rickey Henderson as a defendant.  On May 24, 1993, the parties appeared for trial, and petitioner conducted a settlement conference.  Also present

was Ben Savage, the realtor who had sold the property to Rickey Henderson, who came to court as a witness for Hertwig.  The parties agreed to a settlement, and a judgment was entered on May 24, 1993, directing Rickey Henderson to pay

Hertwig $1,357.93.  According to petitioner, the judgment did not mention Savage because Savage, although agreeing to pay damages, did not want a judgment

entered against him.  Savage disputed petitioner’s recollection, testifying that he did not agree or respond when petitioner stated at the settlement conference that Savage should pay half of the damages.  Savage later failed to pay Hertwig.  In February 1994, although Savage had never been named or served in the action, petitioner directed entry of a “corrected” judgment that identified him as a defendant and directed him to pay damages.  Savage appealed to the superior

court, which reversed the judgment.

 

On these facts, the Commission unanimously concluded that petitioner committed prejudicial misconduct because he “made no effort to comply with or follow the law when he entered judgment” without providing Savage, who was never named as a party, notice and an opportunity to be heard.  The Commission

reasoned that petitioner “acted solely upon his belief that Savage ought to pay, and

his pique that [Savage] did not.”  Petitioner does not contest the Commission’s findings and conclusion.  (See Gonzalez v. Commission on Judicial Performance

 

 

 

 

5


 

(1983) 33 Cal.3d 359, 374 (Gonzalez) [basing discipline on “disregard for even the minimal requirements of fairness and due process”].)

2.  Count Ten:  Improper Comments About Counsel

 

Attorney Nancy Staggs, who was representing a criminal defendant before petitioner, did not appear at a scheduled hearing.  After an unrecorded telephone conference with Staggs’s office, petitioner stated in open court:  “She shouldn’t be handling criminal cases.  [¶]  Here’s another example of a civil attorney who shouldn’t be handling criminal cases.”  Petitioner then commented that Staggs “probably had something more important to do today, like go to a PTA meeting.”

He continued:  “She has a whole bunch of kids.  She’s been having kids ever since I’ve known her.”  Before the special masters, petitioner denied making these comments, suggested that the court reporter “made [them] up” to assist petitioner’s political opponents, and stated that he had instead made complimentary remarks

about Staggs.  However, he also admitted sending Staggs a letter of apology.  In his petition to this court, petitioner “accepts the [Commission’s unanimous]

finding that his statements concerning Ms. Staggs were inappropriate and could be deemed” prejudicial misconduct.  (See Kennick, supra, 50 Cal.3d at p. 325 [basing finding of prejudicial misconduct on “unprofessional, demeaning and sexist” remarks].)

3.  Count Fourteen: Improper Use of Court Staff for Campaign Purposes

 

During the first half of 1994, petitioner was running for reelection; the

 

primary was scheduled for June 7, 1994.  At the end of a court session in late April

1994, petitioner had a group photograph taken of court staff and others who appeared before him.  Petitioner’s clerk and the public defender initially declined petitioner’s request that they pose for the picture.  The public defender was busy with clients when petitioner came to her office and made the request.  However, after petitioner “insisted” that they participate, both reluctantly agreed.

 

 

 

 

 

 

6


 

Petitioner’s clerk felt that petitioner had “ordered” her to participate and that she had no choice.

Based on petitioner’s representations, almost all of those photographed believed the picture was simply a personal memento; none understood that petitioner would use it in his reelection campaign.3   Indeed, both the public

defender and the clerk had informed petitioner they did not want to be involved in

 

the campaign.  Despite this knowledge and contrary to his representations, in May

 

1994, petitioner asked a local newspaper to print the photograph.  The newspaper responded that, because of the imminent election, it would not do so without

charge, and that it would publish the photograph only as a paid advertisement. Petitioner agreed to pay to have the picture published.  On May 26, one week before the election, the picture appeared in the paper with the caption, “PAID POLITICAL ADVERTISEMENT.4

On this record, the special masters concluded that “part of [petitioner’s]

 

motivation in placing the advertisement was to assist his re-election campaign,” and that by failing to get consent from those photographed, his “conduct surrounding the taking and use of the photograph . . . constitute[d]” prejudicial misconduct.  The Commission unanimously agreed.

In this court, petitioner “concedes the sufficiency of the evidence to sustain” the conclusion that he committed prejudicial misconduct in using the photograph for political purposes without getting consent from all participants.

However, he contests the conclusion that his conduct surrounding the taking of the photograph constituted prejudicial misconduct.

In light of the circumstances here, we reject petitioner’s contention.

 

Petitioner himself testified that at least part of his purpose in having the picture

 

 

3                In light of the testimony of those photographed, the special masters expressly found that petitioner’s testimony about the incident was not credible.

4               In his answer, petitioner stated that the newspaper “may have told [him]

that [the picture] would be labeled, ‘PAID POLITICAL ADVERTISEMENT. 

 

 

7


 

taken was to assist his campaign.  By insisting (over objections) that everyone participate, securing cooperation by stating that the picture was simply a personal memento, and failing to disclose his intent to use the picture in his campaign, petitioner committed prejudicial misconduct both in taking and using the picture

for campaign purposes.  (See Gonzalez, supra, 33 Cal.3d 359 at p. 374

 

[“exploitation of judicial office for political ends seriously and impermissibly undermines public esteem for the impartiality and integrity of the judiciary”].)

4.  Count Seventeen:  Telling Clerk She Was in Contempt

 

On August 12, 1992, petitioner met in his chambers with a court clerk to discuss her “pending termination from employment.  After petitioner informed the clerk of the meeting’s purpose and that he was tape-recording their

conversation, the clerk replied that she did not want to discuss the issue unless her union representative was present, and she started to leave.  Petitioner then stated: “Sit down . . . .  I am ordering you to sit down here and talk to me.”  The clerk left

petitioner’s chambers.  Petitioner followed her and “ordered her back into the office,” but “she refused to come” and made a telephone call.  As she made the call, petitioner, who was “upset,” said “loudly”:  “[Y]ou are in contempt.” Petitioner “does not dispute” the Commission’s unanimous finding that he committed prejudicial misconduct in making this statement.

5.  Count One A: Ex Parte Communications Regarding Richard Henderson

 

After his arrest on June 26, 1994, Richard Henderson was charged with possession of cocaine and marijuana.  Petitioner later spoke with Henderson’s uncle, who asked petitioner whether Henderson’s mother could talk to him about

Henderson’s case and about helping Henderson with his drug problem.  Petitioner replied that she could call him, but advised that she should not discuss the case

with him.  Henderson’s uncle, who is a clergyman, expressed an interest in

 

counseling Henderson.

 

 

 

 

 

 

8


 

Henderson’s mother telephoned petitioner at his home a few days later to discuss her son’s case and to make an appointment to see petitioner.  She related Henderson’s version of the arrest to petitioner.  She also told petitioner that her

son had a drug problem and smoked marijuana with his father.  She requested that her son receive a heavy sentence that included Christian counseling.  Petitioner,

who knew the case would be before him, told her the district attorney would decide whether Henderson received drug counseling as part of any disposition. Petitioner did not believe the contact was improper because he viewed it as “a

confidential mother asking for help for her son” and he “believed that [Henderson]

 

would not even know of the conversation.”  Petitioner did not believe Henderson was entitled to know petitioner was communicating with Henderson’s family members regarding his drug use.  During the conversation, petitioner set up a meeting with Henderson’s parents for sometime during the next two weeks.

On August 2, at the beginning of a hearing on Henderson’s case, petitioner met with counsel in his chambers and disclosed his discussion with Henderson’s parents and uncle about counseling, and the uncle’s desire to be involved in the counseling.  He also informed counsel that, because of these contacts, he was “out

of this case,” and the probation department should consider whether Henderson qualified for diversion and counseling.

After the probation department prepared the diversion report, but before a scheduled September 6 diversion hearing, petitioner met with Henderson’s parents

in his chambers.  He gave them a copy of the diversion report and the police report

 

“so they could see the situation there and the problems that they ha[d] with their son.”  He also advised them about how to deal with Henderson.  Henderson’s parents again requested that their son receive a heavy sentence that included

Christian counseling.  Petitioner replied that he could not order someone to receive

 

Christian counseling.

 

 

 

 

 

 

9


 

Some time after Henderson received diversion, his father left a telephone message for petitioner.  When petitioner returned the call, Henderson’s father

stated that Henderson was not complying with diversion requirements.  Petitioner then determined that the probation department had not received notice Henderson was on diversion because the minute order did not reflect this disposition.

The Commission unanimously found that petitioner’s ex parte contacts with members of Henderson’s family constituted prejudicial misconduct.  Petitioner concedes that these contacts “gave ‘rise to an appearance of impropriety,’ “could reasonably be considered prejudicial to public esteem for the judicial office,” and “constituted prejudicial conduct.”  (See former Cal. Code Jud. Conduct, now Cal. Code Jud. Ethics, canon 3B(7), adopted eff. Oct. 5, 1992 [prohibiting ex parte communications].)5

B.  Contested Charges

 

1.  Counts One A and Three:  Handling of the Henderson Matter

 

In connection with the Richard Henderson matter, the Commission also unanimously concluded that petitioner committed prejudicial misconduct in failing

to disqualify himself and willful misconduct in directing alteration of court records

 

to mislead the Commission.

 

(a)  Count One A:  Failure to Disqualify

 

At the August 2 hearing on Henderson’s case, defense counsel stated that

 

Henderson had said petitioner was a friend of Henderson’s uncle and that

 

 

 

 

5               Although the canons of judicial conduct “do not have the force of law or regulation, they reflect a judicial consensus regarding appropriate behavior, and

are helpful in giving content to the constitutional standards under which

disciplinary proceedings are charged.  [Citations.]  [¶] We therefore expect that all judges will comply with the canons.  Failure to do so suggests performance below

the minimum level necessary to maintain public confidence in the administration

of justice.”  (Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d

826, 838, fn. 6 (Kloepfer).)  We cite the canons that were effective on the date of the misconduct that petitioner committed.

 

 

10


 

diversion was “a done deal.”  According to petitioner, on hearing this information,

 

he concluded that Henderson did not deserve diversion because he was using his parents and uncle to manipulate the court.  At that point, petitioner determined that

his ex parte contacts and his feelings about Henderson had created a conflict and

 

he decided to disqualify himself from making the diversion decision.  Petitioner informed counsel of his decision, referred the matter to the probation department

for preparation of a diversion report, and scheduled a diversion hearing for September 6.  The probation department’s report recommended against diversion, finding Henderson statutorily ineligible because of a prior conviction.

At the September 6 hearing, the district attorney expressed willingness to consider diversion despite the recommendation.  After Henderson’s counsel asked

the court to consider diversion, petitioner replied:  “Well, I don’t want to consider

 

it.  Number one is because . . . I know his uncle.  I’ve talked to his uncle about

 

getting him diversion and getting him treatment.  And because of that, I don’t think

 

I should make the decision.”  Defense counsel then asked:  “Should we send it

 

down to Madera Justice Court?”  Petitioner replied:  “No.  I—if you two can work

 

it out, that’s fine with me.  I’ll go along with anything.  [¶]  I just want to put it on

 

the record that I’ve talked to his uncle about helping him on a diversion, if he gets diversion.  ]  And I think if I got involved in overruling the Probation

Department at this point, I think it would be a conflict.”

 

Contrary to his stated intent, petitioner then discussed with counsel Henderson’s prior conviction, the reported level of his drug use, and his family situation, remarking on comments Henderson’s uncle had made to petitioner about this subject.  When defense counsel suggested getting a second probation report, petitioner replied:  “I don’t think they’re going to change their mind.”  Counsel

then asked:  “You don’t want to have another report?”  Petitioner responded:  “No. That would just tick them off.”  Defense counsel then expressed doubt about the

probation department’s conclusion regarding statutory eligibility.  Petitioner then

 

 

 

 

11


 

interjected:  “Yeah, well, the problem is, too, it says here, a ‘daily use of cocaine.’

 

]  And diversion . . . was originated for people who are in danger or might

 

become endangered.  When you have a regular user, C.R.C. is the place for them.” Petitioner also expressed doubt about the relevance of the fact that Henderson had

not been caught using drugs for some time.  Finally, petitioner asked:  “What do

 

the People want to do?”  The district attorney then suggested getting a “rap sheet” and noted “numerous instances” where the court, on the prosecution’s recommendation, had overridden the probation department’s recommendation.

Petitioner replied:  “Absolutely.  No problem with that.  [¶]  But I told you I have a conflict with that.”  At counsel’s suggestion, petitioner then continued the

diversion hearing to September 20 and set it before himself.

 

At the hearing on September 20, the district attorney recommended

 

diversion.  Petitioner responded:  “All right.  ]  I told you that I wasn’t going to make the decision in this.  It’s up to you.”  Henderson’s counsel “ask[ed] for the court’s order for diversion even though the [probation] report [did] not seem to be too favorable.”  Petitioner replied:  “All right.  [¶] Then . . . under the People’s recommendation, I’ll grant you diversion.”  He also directed Henderson to appear

on March 21, 1995, for review of his compliance with the terms of diversion. Petitioner later explained to the Commission:  “I should have denied the

[diversion] request and set the case for another hearing with another Judge, but knowing that the Court usually goes along with the D.A. recommendation in these type [sic] of cases, and the problem of getting a visiting Judge on a Tuesday for

one case, I went along with the D.A. and granted diversion.”

 

On this record, the Commission unanimously adopted the special masters’ conclusion that petitioner committed prejudicial misconduct by “fail[ing] to disqualify himself after the ex parte communications” and improperly

“delegat[ing] his [judicial] power [to order diversion] away to the District Attorney

 

to avoid a conflict.”  Petitioner challenges these conclusions, noting that he “fully

 

 

 

 

12


 

disclosed his [ex parte] contact,” he indicated he did not want to decide the

 

diversion question because of a conflict, the parties did not seek his recusal, and he had no independent duty to disqualify himself.  He also challenges the conclusion

that he improperly delegated his judicial authority, arguing that diversion was a

 

“foregone conclusion” in this case.

 

We find clear and convincing evidence to support the Commission’s conclusions.  By statute, a judge “shall be disqualified” if “[f]or any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the

judge believes there is a substantial doubt as to his or her capacity to be impartial,

 

or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”  (Code Civ. Proc., § 170.1, subd. (a)(6).)

Petitioner was disqualified under this provision; he himself testified before the special masters that he had personal feelings about the propriety of granting diversion and that he should therefore not participate in the decision, based on his

ex parte communications and Henderson’s comment to his attorney that diversion was “a done deal.”  As petitioner later explained to the Commission:  “I wasn’t

going to make the [diversion] decision, because I felt if I denied diversion it would look like I was mad at them, which I was.  ] I was very angry at Mr. Henderson

for playing games with his family . . . .  And I felt that I needed to get out of the case.”  Disqualification based on the judge’s “personal bias or prejudice concerning a party” may not be waived.  (Code Civ. Proc., § 170.3, subd. (b)(2)(A).)  Moreover, even as to waivable disqualifications, a waiver must be

written, “signed by all parties and their attorneys and filed in the record.”  (Code

 

Civ. Proc., § 170.3, subd. (b)(1); see Adams v. Commission on Judicial

 

Performance (1995) 10 Cal.4th 866, 906 (Adams).)  Thus, petitioner’s suggestion that the parties waived the disqualification is unconvincing.

We also agree that petitioner improperly delegated his judicial authority

 

regarding diversion to the district attorney.  Petitioner incorrectly contends that,

 

 

 

 

13


 

because diversion was a “foregone conclusion” in this case, delegating this decision did not constitute prejudicial misconduct.  Regardless of the likelihood that Henderson would receive diversion, as petitioner conceded during the

Commission proceedings, “legally it was [petitioner’s] decision,”  and he “should have . . . set the case for another hearing with another Judge” rather than address

his conflict by ceding his power to the district attorney.  Petitioner’s decision to follow the latter course constituted prejudicial misconduct.  (See McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 532 (McCartney)

[judge improperly delegated judicial power and committed misconduct by imposing sentences bailiff suggested]; cf. Fewel v. Fewel (1943) 23 Cal.2d 431,

436 [judicial decisionmaking ‘may not be delegated to investigators or other subordinate officials or attachés of the court, or anyone else’ ”].)

(b)  Count Three:  Alteration of Court Records

 

The record contains three documents entitled “Notice, Sentence, Commitment Form that purport to memorialize Henderson’s September 20 diversion hearing.  As to disposition, the first, exhibit 17, is blank.  The second, exhibit 18, appears to be a copy of the first with addition of the following handwritten entry for Henderson’s sentence:  “Formal Diversion granted.  Father

to find counselling program.6   The third, exhibit 19, appears to be a copy of the

 

second with a handwritten addition indicating, “per Dan Pursell,” who was the district attorney on the case.  Toward the bottom of the form, the following phrase was added to exhibit 19:  “Judge Fletcher Disqualifies himself for any violation of Diversion Hearings.”  Finally, a handwritten “post-it” note attached to exhibit 19 stated:  “Judge Fletcher—disq. himself.”

On October 26, one of the court clerks, Fran Saunders, faxed exhibit 18 to

 

the probation department to inform it of the diversion disposition.  On October 25,

 

the Commission sent petitioner a letter of inquiry regarding the ex parte contacts

 

 

6               The second document also indicates an additional address for Henderson.

 

 

14


 

and the grant of diversion in the Henderson matter.  Petitioner’s December 30

 

response to the Commission letter attached a copy of exhibit 19, but did not inform the Commission that the exhibit contained entries that did not appear on exhibit

18.  On November 2, the Commission obtained a copy of exhibit 18 from the probation department as part of the investigation of petitioner.  In January 1995,

the Commission asked petitioner to comment on allegations that, between October

 

26, 1994, and his December 30 response to the Commission, during the

 

Commission’s investigation, he directed alteration of the original minute order.

 

Saunders testified as follows regarding preparation of these documents: On September 20, 1994, or sometime after that date but before October 26, she

prepared a minute order in the form of exhibit 18.7   She received a telephone call

 

from the probation department regarding the status of the case.  In response to the inquiry, on October 26, she faxed the probation department a copy of the then- existing minute order, which was in the form of exhibit 18.8   A few days later, petitioner approached Saunders and directed her to change the minute order to

reflect that he had disqualified himself from future hearings in the case and that diversion was granted “per Dan Pursell.”  She asked petitioner whether he wanted

her to prepare an amended minute order, because the court’s policy was to prepare amended orders when existing orders were changed.  Petitioner “said no, he didn’t, just to change it.”  Saunders did not recall petitioner’s stating in court on

September 20 that he was disqualifying himself from hearings on diversion

 

 

 

 

7               The testimony was uncertain regarding the origin of exhibit 17, the blank minute order that Henderson signed.  The official court file did not contain a copy

of an order in this form.  Both Saunders and the court’s supervising clerk speculated that exhibit 17 was a copy of a minute order that was prematurely

distributed to the parties at the September 20 hearing before the proceedings were completed and the appropriate entries were made.

8               Saunders did not recall petitioner’s telling her that the minute order was incorrect and incomplete or asking her to send a copy of a corrected order to the probation department.

 

 

15


 

violations.  She testified that the minute order she originally prepared would have reflected that disqualification had she heard petitioner make that statement.

On this record, we agree with the Commission’s unanimous conclusion that petitioner committed willful misconduct in his handling of the minute orders. Petitioner directed the clerk to alter a minute order and, contrary to court policy,

not to indicate she had changed the order.  The evidence strongly suggests he took this action after receiving the Commission’s inquiry about his ex parte communications in the case.  Petitioner told the Commission he received the

inquiry within 48 hours of an October 26 telephone conversation with Henderson’s father, and Saunders testified that petitioner directed her to alter the minute order within a few days of that date.  In any event, petitioner submitted a copy of exhibit

19 to the Commission with his December 30 response without disclosing that he

 

had directed alteration of the minute order to support his explanation of the events

 

in the Henderson case.  Petitioner’s actions in this regard constituted willful misconduct.  (See Wenger v. Commission on Judicial Performance (1981) 29

Cal.3d 615, 643-645 (Wenger) [backdating affidavit was willful misconduct].)

 

In defense of his actions, petitioner argues that he did not commit willful misconduct because the alterations simply conformed the minute orders to the docket entry for the September 20 hearing, which petitioner asserts “was

completed contemporaneously with the court session” and constituted the court’s

 

“official minutes.”  This docket entry, petitioner maintains, “was the source of all

 

of the material added to Exhibit 17, to make Exhibits 18 and 19 in order to accurately reflect what had occurred.”  “This being so,” petitioner continues, “Exhibits 17, 18 and 19 are merely draft documents that cannot be ‘altered’ and

would not mislead experienced readers.”  According to petitioner, “[t]he editing of

a draft document cannot be an impermissible alteration if the draft document is, as yet, incomplete.”

 

 

 

 

 

 

16


 

For several reasons, petitioner’s response is unpersuasive.  First, regardless

 

of the docket entry, the fact remains that, during the Commission’s investigation of

 

the Henderson matter, including petitioner’s role in granting diversion, petitioner directed alteration of the order, directed that the order not indicate that it had been altered, and sent the Commission a copy of the altered order without detailing the circumstances.  By forwarding only the altered order, petitioner presented the Commission with a grossly incomplete and misleading response.  (See Adams,

supra, 10 Cal.4th at pp. 910-911 [judge’s inaccurate and incomplete responses to the Commission constituted willful misconduct].)

Second, the record contradicts petitioner’s contention that the docket entry reflects all of the information added to the orders.  The entry states:  “Diversion granted; Judge Fletcher disq. himself for any violation of Diversion hrgs.”

Although this entry reflects petitioner’s disqualification on future diversion violation hearings, it does not indicate that diversion was granted “per Dan

Pursell.”  This alteration of the order was important to support petitioner’s claim that, because he had disqualified himself, he let the prosecutor make the initial diversion decision.

Third, the record also does not support petitioner’s claim that the docket entry was “completed contemporaneously with” the September 20 hearing.  The initials of the supervising clerk, Velma Dee Buchanan, appear beside the docket entry, indicating that she made it.  However, Buchanan was not the clerk for the September 20 hearing; Saunders was.  Moreover, Buchanan learned about

petitioner’s alleged disqualification sometime after September 20, when petitioner discovered that the case file did not reflect disqualification and informed

Buchanan of the situation.  The record thus suggests that Buchanan made the docket entry sometime after, and not contemporaneously with, the September 20

hearing.

 

 

 

 

 

 

17


 

Fourth, a conflict exists between the docket entry and the reporter’s transcript of the September 20 hearing.  Unlike the docket entry, but consistent

with Saunders’s recollection, the hearing transcript does not reflect that petitioner disqualified himself from future diversion violation hearings.  On the contrary, it shows that petitioner ordered the parties to appear before him again on March 21,

1995, for a compliance review hearing.  Consistent with the transcript, on March

 

21, 1995, Henderson appeared before petitioner for a diversion review hearing.9

 

Given all of the circumstances we have detailed, and the court reporter’s certification that the transcript “comprise[d] a full, true, and correct transcript” of

the September 20 hearing,  we afford the reporter’s transcript more credence than the docket entry.  (See People v. Smith (1983) 33 Cal.3d 596, 599.)

Finally, petitioner’s current contention that it was unnecessary to mark the altered orders as “corrected” stands in stark contrast to his position and the uncontradicted testimony before the special masters.  In addition to Saunders’s testimony regarding court policy, which we have already discussed, petitioner testified that Saunders should have followed court procedures for preparing an amended minute order in complying with his order to make the alterations.  While cross-examining Saunders, he reiterated that court policy required her to indicate

on the altered order that it was “corrected or amended,” and he challenged her testimony that he “told [her] to break that policy and violate the law.”  And, in

closing argument to the Commission, petitioner again stressed that, “if [clerks] add anything to a minute order after the defendant signed, they are supposed to mark it amended and supposed [to] get the defendant to agree to it.”  Buchanan, the

court’s supervising clerk, confirmed petitioner’s position, testifying that court

 

policy prohibits clerks from altering signed minute orders like exhibit 18 without indicating across the top that they are corrected orders and distributing copies to

all parties.  She also testified that petitioner’s policy was to ask for preparation of a

 

 

9               The minute order for that hearing indicates:  “Need visiting Judge.”

 

 

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corrected minute order if he discovered that a minute order did not reflect his verbal order.  Thus, petitioner’s current position is directly contrary to the uncontradicted evidence in the record.

Indeed, petitioner’s newly minted explanation is just another example of his vague and contradictory representations throughout these disciplinary proceedings regarding these documents.  Petitioner maintains that Saunders faxed exhibit 18 to

the probation department at his request after he learned from Henderson’s father

 

on October 26 that Henderson was not complying with diversion requirements.  In

 

his February 1995 response to the Commission’s January 1995 inquiry about the matter, petitioner stated:  “I don’t recall looking at the minute order or the file on

10-26-94.”  Regarding the differences between exhibits 18 and 19, he stated:  “The only explanation I can offer is that Ms Saunders sent a FAX copy to the probation department and then added the rest at some later time.”  In his answer to the Commission’s notice of formal proceedings, petitioner gave a different account.

He there maintained that, after receiving the call from Henderson’s father on

 

October 26, he “pulled the file,” discovered that the minute order did not correctly reflect that Henderson had been granted diversion pursuant to the district

attorney’s “decision” and that petitioner had disqualified himself, and “ordered” Saunders to make the necessary corrections and send it to the probation department.  Petitioner’s testimony before the special masters was initially

consistent with this latter account, although he additionally noted that the minute

 

order he found in the file on October 26 was in the form of exhibit 18.10   However, after being confronted with his previous position in his February response,

petitioner began to waver as to whether he looked at the file after the October 26

phone call.  Later, in arguing his case to the Commission, petitioner changed his account once again.  He told the Commission that his “only order to Ms. Saunders

 

 

 

10             This testimony supports Saunders’s testimony that she prepared a minute order in the form of exhibit 18 before October 26.

 

 

19


 

was to fax” the minute order to the probation department.  Contrary to his testimony before the special masters, petitioner told the Commission that he had not ordered Saunders to amend the minute order.  When asked whether he

“direct[ed] her to change it in any way,” petitioner replied, “No, I did not,”  and he suggested that Saunders made the changes on her own initiative.11   Of course, as

we have explained, petitioner has shifted his position yet again in this court, conceding that he directed Saunders to prepare a corrected minute order, but arguing that this action did not constitute misconduct because the altered documents were merely incomplete draft orders.

Petitioner’s representations regarding his disclosures to the Commission on this topic are similarly confused and inconsistent.  Petitioner initially testified that, with his December 30 response to the Commission’s inquiry about ex parte communications, he sent copies of both exhibits 18 and 19 to show that the order

had been altered.  He then explained that he obtained a copy of exhibit 18 on

 

October 26 when he reviewed the file after talking with Henderson’s father.  Later, however, he testified that he copied exhibits 18 and 19 when he received the Commission’s inquiry about the matter.  He also later testified that he sent the exhibits, not with his December 30 response, but with his February 1995 response

to the Commission’s January 1995 inquiry about the altered minute orders. Regarding his submission of minute orders to the Commission, he then testified: “I’m sorry.  I don’t recall now. . . .  I remember sending two minute orders, but I don’t remember which they were and when I looked at them . . . .”  Later,

petitioner again testified that he sent the two minute orders in response to the

 

Commission’s January 1995 inquiry, but he could not recall how he got a copy of

the order in the form of exhibit 18.  Before the Commission, however, petitioner appeared to state that he first received a copy of the minute order in the form of

 

 

 

11             During his testimony before the special masters, petitioner suggested that

Saunders had made changes “to make it look like [he] was falsifying documents.”

 

 

20


 

exhibit 18 from the Commission as part of its January 1995 inquiry.  This last statement was consistent with the Commission’s position that petitioner never submitted a copy of a minute order in the form of exhibit 18 and that he had only submitted a copy of exhibit 19.  Petitioner’s continually shifting explanations regarding these exhibits are further evidence of his willful misconduct in

attempting to deceive the Commission.  (See Adams, supra, 10 Cal.4th at pp. 910-

 

911 [judge’s inaccurate and incomplete responses to the Commission constituted willful misconduct].)

2.  Count One B:  Ex Parte Contacts With Peter Vanderputten

 

In connection with the dissolution of his marriage, Peter Vanderputten was criminally charged with violating court orders, violating a protective order, and allowing or causing a child to suffer.  Under an agreement with the district

attorney, Vanderputten pleaded guilty to the charges, and sentencing was continued, with dismissal to follow after a year if he committed no further

violations and obeyed court orders.  The case remained pending before petitioner until he dismissed the charges in accordance with the plea agreement.  During that time, Vanderputten often appeared before petitioner for compliance review.  At

some point, Vanderputten talked about committing suicide and other violent acts.

 

In response, and to protect Vanderputten and his family, petitioner recommended that Vanderputten seek counseling.  As an alternative, petitioner advised

Vanderputten that he was welcome to attend a Saturday morning men’s fellowship group that petitioner led.  Vanderputten attended petitioner’s fellowship group a

few times.  The men at the group were “supporting him and trying to get him to leave his wife alone, and . . . obey all laws, to act like a reasonable person.”

On this record, we agree with the Commission’s unanimous conclusion that petitioner committed prejudicial misconduct by engaging in improper ex parte contacts with Vanderputten.  (See former Cal. Code Jud. Conduct, canon 3A(4), as

adopted eff. Jan. 1, 1975, see now Cal. Code Jud. Ethics, canon 3B(7).)  The

 

 

 

 

21


 

evidence clearly shows that at petitioner’s fellowship meetings Vanderputten discussed the very problems that led to the criminal charges pending before petitioner and his difficulties in accepting the situation.  By his own admission, petitioner viewed himself as Vanderputten’s probation officer.  In one of his responses to the Commission, petitioner conceded that, because of these ex parte

contacts, he “would have had to disqualify [him]self” from hearing allegations that Vanderputten violated his plea bargain.  We agree with petitioner’s concession and conclude that he committed prejudicial misconduct with regard to Vanderputten.

(See Code Civ. Proc., § 170.1, subd. (a)(6).)

 

We reject petitioner’s claim that this conclusion violates his constitutional right to practice his religion.  While presiding over a pending criminal case and

after recommending that a defendant obtain counseling, petitioner invited that defendant to petitioner’s fellowship group specifically to discuss and address the problems underlying the criminal charges.  That, as part of addressing those problems, the group members would look to the Bible for guidance does not make our inquiry regarding petitioner’s conduct an issue of religious freedom.  As a

judge, petitioner may not participate in an ongoing support group where

 

defendants with cases pending before him discuss their attempts to comply with the terms of their plea bargains.12

3.  Count One C:  Ex Parte Contacts with Dennis Jonathan

In January 1991, Dennis Jonathan was charged with driving with an illegal blood-alcohol concentration and having a prior drunk driving conviction.  On

 

 

 

12             We also reject petitioner’s suggestion that he received inadequate notice of this charge.  In its second amended notice of formal proceedings, the Commission cited Vanderputten’s attendance at the “men’s prayer breakfast group on Saturday mornings as an example of petitioner’s “engag[ing] in improper ex parte communications,” “fail[ing] to disqualify [him]self” despite ex parte communications, and “tak[ing] action which appeared unusually lenient toward defendants after engaging in ex parte communications.”  These allegations

afforded petitioner ample notice regarding the Vanderputten case.

 

 

22


 

March 25, he appeared with counsel before petitioner, pleaded guilty to the

 

charge, and admitted the prior conviction.  Petitioner accepted the plea and then offered to postpone sentencing “for a couple months and see how [Jonathan was] doing on [his] programs,” i.e., so Jonathan could “prove to the court that [he] ha[d] control over [his] drinking.”  After Jonathan accepted petitioner’s offer, petitioner stated:  “I do have personal knowledge of Mr. Jonathan and his programs, by the way.”  Jonathan’s counsel replied that she was aware of this fact.  No one was at

the hearing for the prosecution.

 

Petitioner’s acquaintance with Jonathan began when he offered to help petitioner get elected.  Petitioner next saw Jonathan in late 1988, when he appeared before petitioner on a hit-and-run charge.  According to petitioner, he disclosed to counsel during that proceeding that he knew Jonathan from the

campaign, that he “felt uncomfortable in sentencing Mr. Jonathan, [and] that the only way [he] would hear the case . . . was that the sentence would be agreed

between [counsel] . . . .”  Petitioner was concerned “that Mr. Jonathan might think

 

he got a special favor . . . .”  Petitioner next saw Jonathan at the church that petitioner and Jonathan’s parents attended.  Later, in 1989, Jonathan appeared before petitioner on his first drunk driving charge.  After taking Jonathan’s guilty plea, petitioner sentenced him to the “usual” sentence for first time offenders.

After his first drunk driving conviction, Jonathan began attending petitioner’s Saturday morning men’s fellowship group.  Before his 1991 arrest, Jonathan attended group meetings approximately once a month for six to eight

months.  At group meetings, Jonathan disclosed that he was an alcoholic and that

 

he needed help.  After his 1991 arrest, but before sentencing, Jonathan attended

 

two or three more group meetings.  At a meeting before his first court appearance,

 

he informed petitioner that he had  ‘made a terrible mistake, . . . slipped on [his]

 

 

 

 

 

 

 

 

 

23


 

sobriety and . . . received a ticket for driving under the influence.’ 13   According

 

to Jonathan, petitioner “was sympathetic.”

 

Petitioner testified that he decided to leave Jonathan’s sentence to the agreement of counsel because of these contacts.  Petitioner was concerned that, if

he sentenced Jonathan, “the appearance might be that [petitioner] . . . was lenient,

 

no matter what [he] did.”  Petitioner “didn’t want anyone to say that [he] was lenient . . . because [Jonathan] got people to vote for [petitioner] and his parents

went to the [church petitioner] attended.”  According to petitioner, he advised the district attorney that he knew Jonathan, that he would preside in the case if counsel did not object, but that he would leave it to counsel to agree on the sentence

because of his concern about claims of leniency.  The district attorney, however, did not recall that petitioner made any of these disclosures.

Because Jonathan needed to get to work, he appeared for sentencing on July

 

30 before court was in session.  Sentencing occurred in petitioner’s chambers.  The district attorney was present, but defense counsel was not.  Petitioner had

contacted defense counsel about the matter, and she had replied that her

 

attendance was unnecessary because she knew what the sentence would be.  She and the district attorney had agreed to recommend a sentence of a fine and jail

time.  According to petitioner, Jonathan waived his right to have counsel appear

 

for sentencing; there is no record of the proceedings to verify petitioner’s claim. Notwithstanding his purported decision to leave Jonathan’s sentence to counsel, petitioner proposed that, in lieu of the fine and jail sentence, Jonathan be required

to perform community service in the form of construction work on a proposed addition to the courthouse.  Petitioner eventually imposed this sentence.  The

district attorney characterized this sentence as “unusual,” noting that in 99 percent

 

 

 

 

 

13             Petitioner is thus incorrect in asserting that “no discussion of the case took place” at the fellowship meetings.

 

 

24


 

of the cases of second time offenders, service of a minimum 10-day jail sentence is required.

Over a year later, petitioner saw Jonathan in the court clerk’s office.  With

 

no attorneys present, he informed Jonathan that the addition to the courthouse had not been approved and that he would have to perform his community service in another way.  Petitioner asked Jonathan how he wanted to fulfill his sentence.

According to Jonathan, petitioner gave him a list of options from which to choose. Petitioner then modified Jonathan’s sentence in accordance with Jonathan’s preference.

On this record, we agree with the Commission’s unanimous conclusion that petitioner committed prejudicial misconduct in handling the Jonathan matter.  As

in the Henderson matter, petitioner recognized that his ex parte contacts with Jonathan created a conflict, and his initial solution was simply to cede the sentencing decision to counsel.  He did not disclose his ex parte contacts to the

district attorney, and there is no evidence that he disclosed even to defense counsel that he had discussed the offense with Jonathan at a fellowship meeting.

Moreover, despite his ex parte contacts and his decision not to participate in sentencing, petitioner took control of sentencing and imposed an unusually lenient sentence that included no actual jail time.  Petitioner himself admitted that

suspension of the jail sentence and fine was not part of “the normal sentence” for a second drunk driving offense.  Over a year later, petitioner modified the sentence through additional ex parte contacts with Jonathan, without involvement of either defense counsel or the district attorney.  The record thus contains clear and convincing evidence that petitioner committed prejudicial misconduct in his

handling of the Jonathan matter.  (See former Cal. Code Jud. Conduct, canon

3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud. Ethics, canon 3B(7); Code Civ. Proc., § 170.1, subd. (a)(6).)

 

 

 

 

 

 

25


 

We reject petitioner’s claim that Jonathan’s sentence was “within

 

customary local guidelines for the rare, or exceptional case.”  The record shows

 

that service of jail time was not required only where a single parent could not care

 

for her small children during incarceration or the defendant had a physical problem

 

or was elderly.  Petitioner has identified no circumstance that justified treating the

 

Jonathan matter as an exceptional case.

 

4.  Count One D:  Ex Parte Contacts with Robert Reagan, Jr.

 

Robert Reagan, Jr., approached petitioner “at [a] restaurant and complained about a speeding violation and told [petitioner] he did not have the money to pay

for it.”  Petitioner “knew” Reagan “by his many appearance[s] in court.”

 

Petitioner and Reagan also had attended the same school functions because their children had attended the same school for at least 10 years.  Petitioner replied that Reagan “could do community service for the fine.  Mr. Reagan agreed and

[petitioner] gave him a couple of month[s] to complete and show proof.” Petitioner also told Reagan that he had to attend traffic school.  Petitioner then

“went back to court,” “pulled the file,” and indicated that he had given Reagan “an extension” to perform his community service.  A few months later, a warrant

issued because Reagan had not paid his fine.  In court, Reagan stated that “he did not understand what had happen[ed] and asked for another chance to do the

service and attend traffic school . . . .”  In his response to the Commission charges, petitioner stated:  “Because I had handled it, and I did not have a clerk do it, I felt

that I should give him one more chance, and if he failed this time, it would be properly documented by a clerk.  Then he would be charged with failure to pay.”

We agree with the Commission’s unanimous finding that petitioner

 

committed prejudicial misconduct in handling the Reagan matter.  (See former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code

Jud. Ethics, canon 3B(7); Code Civ. Proc., § 170.1, subd. (a)(6).)  Petitioner

 

informally discussed Reagan’s situation at the restaurant and agreed to give him an

 

 

 

 

26


 

extension of time in order to perform community service in lieu of a fine.

 

Petitioner then altered the official court file to reflect his informal handling of the matter.  According to petitioner’s own response, his ex parte handling of this

matter confused Reagan and required him to give Reagan still another chance after

 

a warrant was issued when he failed either to pay or to perform community service.

5.  Count One E:  Ex Parte Contacts with Steven Pearson

 

In July 1990, petitioner placed Steven Pearson on probation after he

 

pleaded guilty to brandishing a firearm.  Sometime after sentencing, Pearson began attending petitioner’s Saturday morning fellowship meetings.  According to

petitioner, Pearson had “serious spousal abuse problems,” was a “very sick man,”

 

and had a “very violent temper.”  Pearson discussed, and petitioner counseled him about, these problems during the fellowship meetings.  Pearson became “a real problem” for petitioner and his wife, and they had “to discourage him from

seeking [them] out.”

 

While Pearson was on probation, he and his wife were charged with violating zoning laws by keeping piles of junk in their yard.  Petitioner was personally aware of the circumstances underlying the charge; he had stopped by

Pearson’s property, seen the junk in the yard, and advised Pearson to dispose of it. Petitioner believed that Pearson, and not his wife, was responsible for the

violation, and petitioner told the district attorney of his belief.  According to petitioner, he also told the district attorney he was disqualifying himself from

hearing the case.  The district attorney, however, did not recall petitioner’s saying anything about the Pearsons or whether he had a problem with them.

Consistent with his practice in similar cases, the district attorney asked that

the matter be continued until, and dismissed when, the Pearsons cleaned up their property.  At the district attorney’s request, petitioner continued the matter two or three times.  Petitioner did not believe that the conflict created by his ex parte

 

 

 

 

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contacts and his knowledge of the zoning violation prevented him from ordering a continuance.  However, petitioner also believed that the district attorney gave

Pearson too much time to clean up the property and should have forced Pearson to act more quickly.  Petitioner remembered that Pearson’s earlier brandishing

offense involved a neighbor who was angry about junk in Pearson’s yard.

 

On this record, we agree