Judicial disciplinary chair discusses #MeToo’s influence

SAN FRANCISCO — As chair of California’s judicial discipline body, Nanci Nishimura’s challenge is balancing an obligation of confidentiality and due process with public transparency.

“We have a constitutional mandate first and foremost to protect the public, but we also have to protect the judge and the complainant and the witnesses from any wrongful or unfounded complaint,” said Nishimura, who is the first female non-judge chair of the Commission on Judicial Performance.

This balancing act poses difficulties when the commission faces public criticism for appearing complacent or secretive. On Monday, the commission charged 2nd District Court of Appeal Justice Jeffrey W. Johnson with nine counts of misconduct, citing sexual harassment allegations spanning 19 years.

The commission accused Johnson of repeatedly groping a fellow justice and pressing his security detail for sex. Johnson’s attorney, Paul S. Meyer, denied the allegations and said Johnson would defend himself against the accusations.

The commission has come under fire in recent years for not disciplining judges accused of misconduct. Johnson is the second high-ranking state jurist to face accusations of sexual harassment. Conrad Rushing, the 6th District Court of Appeal presiding justice, retired in December 2017 amid accusations of sexual harassment, but the commission did not confirm at the time whether it had investigated him.

The commission was also publicly criticized for not disciplining Santa Clara County Superior Court Judge Aaron Persky though the commission said it found no clear and convincing evidence of misconduct. In June 2016, Persky sentenced Brock Turner, a Stanford University student who was convicted of sexually assaulting an unconscious woman behind a dumpster, to six months in county jail plus three years of probation, which triggered significant public outrage over the sentence’s perceived leniency.

There was also criticism over the commission’s resistance to its first state audit, which is now underway.

“I think it’s healthy when the public is aware of things that are going on,” Nishimura said in a recent interview. “Does that put pressure on us? Not really, but in the stage of public opinion, we become a moving target.”

Nishimura, a litigator at Cotchett, Pitre & MccCarthy LLP, joined the commission in 2011 and was elected chair in March 2018. During her tenure, the commission’s public profile has increased due to a combination of heightened media interest in judicial misconduct, outreach to the legal community and changing societal standards that normalize filing complaints against a judge, she said. As a result, the number of complaints reviewed by the commission has risen by 37 percent since 2008.

In 2017, the commission reviewed 1,229 complaints. Roughly 88 percent, or 1,081 complaints, were closed for an insufficient showing of misconduct after initial review. The majority of those were from litigants alleging an error of law, which the commission doesn’t handle, Nishimura said. Similar to previous years, about 148 cases proceeded to staff inquiry or preliminary investigation, of which 39 resulted in discipline.

A significant portion of disciplined conduct — about 30 percent in 2017 — is usually related to a judge’s demeanor and decorum. Nishimura’s four years on the Commission on Judicial Nominees Evaluation, which vets judicial candidates, gave her insight into what makes a good judge, including experience, temperament and approach to serving the public, she said.

The Commission on Judicial Performance approaches the same question from the opposite end of the spectrum.

“One of the most important attributes of a judicial candidate is judicial temperament: Does this person have the temperament to deal with the public, to be impartial, to be fair, to be neutral, to be a good listener, to be a good arbiter of the law and not an advocate?” said Nishimura.

Other common reasons for discipline include improper political activities, abuse of authority, failure to disclose a conflict of interest and bias.

The commission members often struggle with the question of appropriate discipline for each case, which ranges from a private advisory letter to public admonishment to removal, Nishimura said. The commissioners heavily weigh precedent, relating to the severity of the misconduct and the potential harm to the public, as well as any prior discipline of the judge, she said. They also consider legal trends, she said, as certain kinds of misconduct may be considered more serious now than in the past, such as with sexual harassment or bias.

“We live in a changing world, and this commission is not static,” she said. “The commission evolves as our world evolves, as our judiciary evolves, as our society evolves, as our community evolves.”

Nishimura declined to say whether the commission received more complaints related to sexual harassment in 2018, but she noted there have been more public accusations of judicial officers committing sexual harassment.

In addition to Johnson, one other judge, Contra Costa County Superior Court Judge John Laettner is under formal proceedings over nine counts of misconduct, including allegations he made inappropriate comments to female defendants, attorneys and a court reporter. Laettner denied the charges in an answer to the commission. The hearing is scheduled for Feb. 25.

In 2017, Rushing retired amid sexual harassment allegations, and the commission publicly disciplined two judges for misconduct related to sexual harassment.

An additional challenge is that the commission, unlike companies, cannot suspend judicial officers under investigation until formal charges are filed. A rule allows for temporary disqualification upon notice of formal proceedings if the judge is causing continuing public harm. But it was only invoked once, in the 1999 case of former Ventura County Superior Court Judge Robert C. Bradley, who repeatedly came to court intoxicated.

Nishimura declined to say whether the commission is reviewing the rules.

The Judicial Council, however, released a report in May saying improvements may need to be made in the future to complaint processes and implemented a new rule requiring sexual harassment settlements involving judicial officers to be publicly available. Chief Justice Tani Cantil-Sakauye launched a review in October of the judicial branch’s policies on harassment, discrimination and inappropriate workplace conduct. Nishimura said the Commission on Judicial Performance is not involved with policy-making, but she’s personally supportive of the efforts.

Nishimura is especially proud of how the commission has diversified over the years. Historically, the commission chair was always a judge, which makes sense, Nishimura said, because judges understand the job of those who might be subjects of complaints. In 1994, however, voters changed the composition of the 11-member committee to include six citizens instead of two, representing everyday people who go to court without knowing the background judicial selection process.

Nishimura views herself as a bridge between the judicial members and the public members of the commission, familiar with the courtroom but not part of the judiciary itself. She still recalls the “terrifying” experience, before she was a lawyer, of testifying in court after a car accident, and she’s empathetic to litigants who may be unaware they’re being mistreated by a judge, she said.

Hearing the stories of her grandparents, who were incarcerated in internment camps during World War II, inspires her to encourage Asian Americans and others from different backgrounds to be engaged in the civil process, whether as lawyers, judges or community members, so the judicial branch reflects the diversity of the communities it serves.

“That’s what makes us more empowered or more able to protect the public, because we are representative of the public,” she said.