Justice hearing misconduct case against AG candidate blasts both sides

SACRAMENTO — There were fireworks on the final day of the Commission on Judicial Performance hearing into misconduct claims against attorney general candidate Steven C. Bailey — including the appeals court justice running the hearing calling out “toxicity” on the El Dorado County Superior Court.

The comments came Tuesday near the end of testimony by the final witness in the case, El Dorado County Court Executive Officer Tania Ugrin-Capobianco. She testified she searched through files looking for wrongdoing by Bailey at the behest of the Presiding Judge Suzanne N. Kingsbury.

“It was obvious there was something happening,” Capobianco said. “I was asked plenty of times to forward information on him.”

Bailey’s lead attorney, James A. Murphy of Murphy Pearson Bradley & Feeney in San Francisco, asked Capobianco if she was asked to specifically look for evidence to back up one of the commission’s chief claims — that Bailey ordered DUI defendants to a pretrial monitoring company where his son worked.

Capobianco said she had but found no referrals besides the five that prosecutors introduced into evidence in the hearing.

Bailey retired from the El Dorado County court in August 2017 to run against incumbent Attorney General Xavier Becerra. A Republican, Bailey gained early support from law enforcement groups and finished second in the June primary with 25 percent of the vote. The panel is expected to rule on the case after the November election. The commission first introduced 11 allegations of misconduct against Bailey in February. These include improperly using his position in his run for attorney general and providing financial opportunities for friends and family.

Bailey’s side has denied the charges, claiming they were politically-motivated. Taking the stand most of Friday and Monday, the former judge said in the past he has criticized Kingsbury’s management of the court she has run since 1999. In retaliation, he said, she began trying to gather and even manufacture evidence against him.

Capobianco was key to Bailey’s side proving its case. For key portions of her testimony, she was questioned not by Bailey’s attorneys but by Kenneth R. Yegan, a justice with Division Six of the 2nd District Court of Appeal, who is leading the three-member panel of special masters in the case.

Yegan asked her if there was “any reason” to believe the monitoring company where Bailey’s son had worked failed to deliver satisfactory monitoring services. She said no. Bailey has claimed he sought a legal opinion from the California Judges Association on disclosing his son worked at the company and he began referring to a different provider when one became available.

Then Yegan asked Capobianco if it was normal for a presiding judge to remain in place for nearly two decades.

“Many jurisdictions do it very differently,” Capobianco said.

“There seems to be a toxicity in the court you work at between the judges,” Yegan replied.

Attorneys offered closing arguments in the afternoon with the special masters finding arguments to dislike on both sides.

Yegan questioned commission trial counsel Mark A. Lizarraga about a count based on Bailey praising the fashion sense of an openly gay Parisian store clerk in response to a compliment on his outfit from an openly lesbian judge, adding it did not appear to show bias against gay people.

After Yegan said he “would have let this one go,” Lizarraga noted another judge claimed to be offended by the conversation.

“Wasn’t she on the lookout for comments by Judge Bailey in order to provide more ammunition to Judge Kingsbury?” Yegan asked.

Murphy also faced pushback from the special masters for his own closing statement, painting the prosecution as “overzealous” and “mean-spirited.” For instance, Murphy conceded Bailey was “inadvertent and negligent” when he appeared to allow an outside contractor and a judicial candidate to use his name in endorsements. “Do we want inadvertent and negligent judges on the bench?” Yegana sked, before quickly adding, “I withdraw that.”