Is the 3rd District slacking? Let the CJP do its work first.

A distinguished appellate lawyer recently filed an unusual disciplinary complaint against three justices of the 3rd District Court of Appeal, which sits in Sacramento. Marshalling statistics, the complaint alleged intolerable delays in deciding appeals. Instead of commenting on the allegations, as many have, I address the need for fairness when accusing judges of dereliction of duty.

By virtue of who filed the complaint, the Commission on Judicial Performance was bound to reckon with it. Jon Eisenberg is author of the Rutter Group "blue" guide on California appellate practice, often cited in briefs and opinions. But arguing the allegations against the 3rd District justices in public, while simultaneously initiating a case before the CJP, goes too far.

Disciplinary complaints against California judges present sensitive and serious issues calling for a careful deliberative process. To protect the rights of all involved, a complaint is filed and examined confidentially until the CJP can investigate. The attorney who brought the complaint against the 3rd District justices, however, released it immediately for public discussion. Rather than allowing the CJP time to inquire, events suggest the complaint sought to cue immediate action, such as possibly transferring 3rd District appeals elsewhere for decision (a request the chief justice denied).

Like other government officials holding positions of trust, judges are not above criticism. The robe is not a shield against accountability. Still, allegations of judicial misconduct presented to the CJP should not be aired out concurrently in the public arena as occurred here.

Publicizing the disciplinary allegations -- before any CJP process, much less conclusions -- was unfair to the judges named and, as a collective body, the entire 3rd District. It put the three justices in a virtually impossible spot. Except for electoral challenges, and even in that setting, judges are poorly positioned to engage in a public dialog concerning their performance in office. This would be, in a word, unjudicial.

Instead, disciplinary charges against judges are properly entrusted to the CJP. Its process should not be supplanted, if not tainted, by today's rush to judgment on the internet. The 3rd District delay allegations could have been voiced in constructive ways without calling out individual justices, now named in an adversary proceeding, who are effectively muzzled from defending themselves.

If sitting judges are entitled to due process like unpopular defendants, a one-sided head start in the media is no way to ensure it. The result has been a trial in the court of lawyerly opinion bounded only by the subjective outer edges of decency.

At this early stage, none of us, including the 3rd District justices, should know a CJP complaint was filed. As a policy, stringent confidentiality at the outset may be debatable but this is the current rule. There are sound reasons, fairness among them, to respect that process and allow the CJP to do its job.

Indeed, the 3rd District disciplinary complaint acknowledged that despite a thorough statistical analysis, some information relevant to the delay allegations was not publicly available. This underscores the need to allow the CJP to gather additional data, inaccessible to practitioners, while it investigates the charges.

How often have you heard a judge ask: "OK, but what does the other side say?" So too here. With the country emerging from a devastating pandemic, this is a historically unique moment for new beginnings and structural change in government. Delay in resolving appeals should be part of that conversation, but without unfairly tarring the bench in the process.. 