Jesse James' Death Hoax and Buried Treasures

Indemnification

“On June 20, 1995, after respondent received the waivers he requested from counsel and Dave Walker, he further requested Dave Walker to indemnify respondent for any civil or judicial performance action Janie Walker might bring against respondent. Dave Walker complied under duress. This request shakes the core of a fair and accessible court system. This is a classic chilling factor that impedes lawful inquiry into judicial performance. A judge making and receiving such indemnification violates Canon 1 requiring a judge to uphold the integrity and independence of the judiciary and Canon 2A which requires that a judge shall act at all times in a manner that promotes public confidence.

“The request for indemnification was directly made on respondent’s own initiative. It was intentional and beyond any possible lawful purpose.[8] Additionally, it was done for the purpose of respondent’s own personal financial benefit. This constitutes bad faith.

“Respondent was on the bench conducting a jury trial when he requested and received the waivers. Further, the request and receipt of waivers required respondent to use his judicial powers for an improper purpose. Respondent was acting in his judicial capacity.

“We find this constitutes a single act of willful misconduct.”

The Commission agrees.

Dissuading the Filing of Complaints By Threats of Retaliation

“Canon 1 requires a judge to uphold the integrity and independence of the judiciary. Canon 2A requires that a judge shall act at all times in a manner that promotes public confidence. Canon 3B(2) requires that a judge be faithful to the law regardless of fear of criticism. Canon 3D requires a judge to take appropriate action when a lawyer exhibits unprofessional conduct in the presence of the judge.

“Respondent’s threat to send the transcript to various media and professional organizations violates multiple Canons. First, this is an unacceptable way to deal with perceived misconduct. Direct communication to the lawyer to correct the behavior or a referral to the appropriate disciplinary body is the proper course. Second, this approach demeans the integrity of the judiciary. Lastly, the public expects and deserves the judiciary to immediately address and correct the problem with the proper tools. This can only be viewed as respondent employing an inappropriate method of threatening counsel with public censure without due process of a disciplinary proceeding.

“Respondent’s extraction of a waiver regarding the reporting of respondent’s activities to the Commission on Judicial Performance is inexcusable and impugns the very foundation of judicial integrity. Failure to proceed in a lawful contempt action in trade for a waiver of scrutiny of the respondent’s ethical behavior is willful misconduct.

“Respondent’s act was intentionally done after an evening had passed which afforded ample time for reflection regarding the appropriate course of action. Respondent’s announcement of his plan to contact the media and professional organizations in a retaliatory fashion was not a lawful approach to the problem of an attorney’s unprofessional conduct in a courtroom. Finally, even if lawful, this underlying purpose was not for a faithful discharge of judicial duties. The primary overriding purpose was for respondent’s own personal financial benefit. Respondent did not want to have this trial or his conduct reviewed by the Commission on Judicial Performance and was willing to discourage the filing of complaints by the use of a threat.

“We find this constitutes a single act of willful misconduct.”

Again, the Commission agrees.

JUDGE ROSS’S ARGUMENTS AND OBJECTIONS SUBMITTED

FOR COMMISSION REVIEW

Judge Ross submitted written objections to the Masters’ Report. He argues that he did nothing wrong, and that if any discipline is imposed, it should be no more severe than a public admonishment.

Judge Ross’s factual objections do not identify any particular finding as being in error.[9] His briefs contain numerous statements of facts which either have no citation to the record, or, if cited, no support in the record. The Commission values the Masters’ Report and gives their findings great weight, especially respecting credibility determinations. Having carefully reviewed the record, the Commission concludes that the Masters’ findings are fully supported by the evidentiary record.

It follows that the Commission finds no merit to Judge Ross’s assertions that do not square with the Masters’ findings. In arguing that Judge Ross did nothing wrong in the Walker case, for example, Judge Ross’s written objections assert:

There was no coercion; all parties testified on the record that they were signing the waivers of their own free will. (RT July 29, 1997 p. 176 & p. 197-198)

(Respondent’s Obj., p. 4, ll. 4-6.)[10] Reference to the cited pages shows that each witness testified that in order to avoid jail or other threats from Judge Ross, they had signed waivers in order to keep Judge Ross from putting Sergeant Walker in jail.

The unqualified statement in Judge Ross’s brief that the parties testified they exercised their own free will is not accurate. We specifically find, as the Masters did, that Janie Walker and her husband were coerced into signing the waivers (Appendix 1), and that each believed that Sergeant Walker would suffer incarceration if they did not do so. (Masters’ Report, p. 31.)

In another instance, Judge Ross’s brief asserts, without citation:

… Judge Ross’s intention was not to embarrass Spitz, but to keep order in his courtroom. Judge Ross had ruled that Spitz was not a party to the motion, and that he should stop addressing the court out of turn; when Spitz refused to follow the ruling the court had made, and continued to speak out of turn, Judge Ross told him he would hold him in contempt. This was not done to embarrass him, but to keep order in the courtroom. The calendar was full that day and court proceedings needed to continue in a timely fashion. (Emphasis added.)

(Respondent’s Obj., p. 2, ll. 10-17.) The underlined portion is not a fair characterization of the record, which is quoted in the findings above. There was no evidence that Spitz refused to follow a court ruling, nor that he “continued to speak out of turn.” With respect to Judge Ross’s treatment of Spitz, the Masters found—with no contradiction in the evidence from Judge Ross or from any other witness—that it was Judge Ross who was upset and yelling, not Spitz.

In short, the Commission finds no merit to Judge Ross’s assertions of error by the Masters.

With respect to Judge Ross’s legal arguments, they all share the same defect: they are not based upon the record. In each instance, Judge Ross starts with the premise that he did not do anything wrong, and concludes, therefore, that he was not acting in bad faith, and that he did not commit misconduct. Judge Ross’s arguments simply do not address the facts as found by the Masters, and the Commission.

The record does reflect that Judge Ross may have encountered some difficult situations, and as the Masters noted, Judge Ross “exercised great patience numerous times during the trial of Walker v. Craig.” (Masters’ Report, p. 39.) All judges encounter difficult cases and difficult attorneys. No matter what the situation, however, there can be no justification for demands of waiver, conditioning contempt upon signing stipulations, or extorting promises purporting to preclude complaints to the Commission on Judicial Performance.

DISCIPLINE

Judge Ross served for 12 years as a judge of the Orange County court. He has no record of prior discipline. The Masters—who observed Judge Ross and evaluated his credibility—found a lack of credibility. With respect to the incident involving Spitz in the hallway, for example, the Masters found that the statements attributed to Spitz “did not occur.” Our own review of the record persuades us that Judge Ross’s description of certain events is not reliable.

On the other hand, Judge Ross called a large number of witnesses to testify that he has a good reputation as a judge. He practiced law for 29 years, and according to some witnesses, he was hard working and had other characteristics that one would expect a judge to have.

As the Masters concluded, however, after recitation of the evidence in mitigation:

“Respondent’s evidence of his honesty, legal knowledge, reputation for appropriate courtroom control and the difficult circumstances of various trials cannot mitigate the serious nature of the multiple acts of willful misconduct and prejudicial conduct he committed.” (Masters’ Report, p. 39.)

We agree. (See, also, Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 865.)

By adopting the Masters’ findings, the Commission has found eight instances of willful misconduct, plus five of conduct prejudicial. To the extent that multiple incidents of misconduct arose out of the same proceeding or occurrence, the Commission has considered this in assessing discipline. The Commission’s action is based upon the nature of this misconduct and its affect on the public and the judicial system, rather than a mere tally of the number of instances of misconduct. (See Furey v. Commission on Judicial Performance (1987) 43 Cal.3d 1297, 1313 and 1315 (overlapping charges not counted separately for discipline).)

As noted, Judge Ross’s briefs and arguments continue to assert that his conduct was blameless. It is evident that Judge Ross has no basis for appraising his future conduct—and that events such as those described above could happen again if he were to sit as a judge.

We recognize that willful misconduct does not compel removal from office. Indeed, the Commission recognizes that a lesser sanction may be appropriate for a judge “who showed himself ready, willing, and able to reform under a less severe sanction.” (See Doan v. Commission on Judicial Performance (1996) 11 Cal.4th 294, 339.) In this case, however, Judge Ross does not acknowledge any wrongdoing, nor is there any suggestion in the evidence or in the briefs that he would change his behavior if he were to resume judicial duties. In his brief filed January 15, 1998, Judge Ross continues to assert: “Respondent never committed any act of wilful misconduct, or prejudicial misconduct so sanctions should not be given.” (Response to Examiner’s Opening Brief (Rule 130 (b)), p. 3.)

At oral argument, Judge Ross remained steadfast that he had done no wrong. With respect to extracting waivers from the parties of their constitutional rights to complain to the Commission on Judicial Performance, Judge Ross’s response remained that, “I made the best decision, I thought, for everybody.” (Transcript of oral argument, March 12, 1998, p. 33.)

Thus, from what appears in the record, and what appeared at oral argument, there is no basis for the Commission to assume or conclude that Judge Ross is ready, willing and able to reform—under any sanction. (See Doan, supra.)

As was the case in Kloepfer v. Commission on Judicial Performance:

The record does not suggest that petitioner has, or will be able to, overcome this trait and that similar incidents will not recur. For this reason comparison of the discipline imposed in other cases, as petitioner suggests, is not fruitful. Our role is to determine, in the individual case, the action necessary to protect the public and the reputation of the judiciary. The evidence fully supports the conclusion of the Commission that this purpose requires that petitioner be removed from the bench.

(Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 866-867.)

As the Supreme Court said in Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 912:

In making our independent determination of the appropriate disciplinary sanction, we consider the purpose of a Commission disciplinary proceeding—which is not punishment, but rather the protection of the public, the enforcement of rigorous standards of judicial conduct, and the maintenance of public confidence in the integrity and independence of the judicial system. [Citations omitted.]

Judge Ross, having resigned from office, is not subject to removal. The next available option is an order of public censure plus an order barring Judge Ross from sitting on assignment. The Commission was granted such authority by Proposition 190.[11] Lesser sanctions, such as a public admonishment, would allow Judge Ross to sit again as a Superior Court judge on assignment.

Given the egregious misconduct presented by this case, the Commission orders that Judge Ross be publicly censured, and that he be barred from receiving any assignment, appointment, or reference of work from any California state court.

This decision shall constitute the order of public censure and bar.

The Commission’s vote was 9 to 0.

Dated: April 30, 1998

______________________________

Robert C. Bonner

Chairperson

[1] The Special Masters were Justice Patti S. Kitching of the Court of Appeal, Second Appellate District, Division Three, Judge John E. Dearman of the San Francisco County Superior Court, and Judge Michael T. Garcia of the Sacramento County Superior Court.

[2] The Commission normally consists of eleven members. There were two vacancies on the Commission at the time of oral argument.

[3] The Masters found a failure of proof as to the third count, and trial counsel have not filed objections. That count is therefore dismissed.

[4] In the event of a discrepancy between the Masters’ findings and those made herein by the Commission, the Commission intends that these findings shall prevail.

[5] Plaintiff was not asking for $60 million or any seven‑number figure. (RT July 31, 1997, p. 97) As events later developed, despite the rulings by Judge Ross against State Farm, the case settled for $85,000. The case settled because Judge Ross said he was going to strike the answer and enter default, Judge Ross said the case had a value of seven figures, and Judge Ross had imposed monetary sanctions. Given these things and respondent’s demeanor, State Farm’s trial attorney felt Judge Ross was prejudiced and would not provide a fair trial. (RT July 31, 1997, p. 43)

[6] The transcript reflects a lengthy dialog in which Judge Ross attempts to conduct a contempt proceeding. (See exhibit 10, pp. 232-50.) With respect to Sergeant Walker’s alleged contempt, the transcript shows:

THE COURT: …Sergeant Walker, I have a very serious charge against you. I am going to repeat it to see if the deputy, I’m saying it correct.

That Yesterday at approximately 4:30 p.m. that is or 1630 in Marine and Army and Air Force time that you made the following statement, and would you repeat again what you said previously, the first part of the statement?

THE BAILIFF: Sergeant Walker made a statement to me that Mr. Himes better live in a metal house at which time I confronted him said you don’t make those kind of remarks in my courtroom, and he stated he didn’t mean it in a threatening manner, he meant it similar to people who live in glass houses don’t throw rocks.

Then he said he had information that Mr. Himes was involved in some illegal activity and he would report him to the State Bar at the end of the trial.

THE COURT: All right. Sergeant Walker, you have the right to remain silent. This will be a hearing on a contempt proceeding.

MR. EISENBERG: Ah.

THE COURT: And I will set it because there is no question in this court’s mind that this is contempt of court. It is one of the most terrible things I’ve ever heard and you’re entitled to counsel so you can remain silent or you can say you want to talk now.

I don’t care. But you have the right to remain silent. You also have the right to an attorney. If you cannot afford an attorney one will be appointed for you for the order to show cause hearing for contempt.

(Exhibit 10, pp. 232-33.)

[7] Judge Ross also said, “I assume -- and if you sue me Mr. Eisenberg, I’ll get your ass for the rest of your life.” (Exhibit 12, p. 25.)

[8] Additionally, article VI, section 18(h) of the Constitution provides:

No civil action may be maintained against a person, or adverse employment action taken against a person, by an employer, public or private, based on statements presented by the person to the commission.” [Footnote by the Commission.]

[9] The Commission’s rules specify that: “Objections to the masters’ report and all factual statements shall be specific and shall be supported by reference to the book and page number of the record.” (Rule 130(a).)

[10] At oral argument, Judge Ross’s counsel continued to assert that the extortion of waivers was not through the exercise of judicial authority:

CHAIRMAN BONNER: Is it your position that the waivers that were given by the attorneys and the parties were freely and voluntarily given?

MS. SUWCZINSKY: Absolutely.

CHAIRMAN BONNER: You’re telling us that Judge Ross did not use his position of authority in any way to induce the parties and litigants to enter into these waivers?

MS. SUWCZINSKY: No, he did not. He gave the litigants a