- Judge commented to a female attorney, “Sometimes having you in here is like having a teenage daughter—you constantly argue with me and you just keep talk, talk, talking until you get what you want[.]”
- Justice commented to a female attorney that she was “fit”, “beautiful”, commented on her legs, and that his wife no longer cared about fitness as well as sent said female attorney sexually suggestive text messages.
- During a hearing including witness testimony, Judge commented about religion, the purpose of religion, referenced the Bible (John 3:16) and discussed the promise of everlasting life.
These examples are not from a top selling thriller or documentary, these are examples from real life, experienced by our friends and peers, arguably some of the less egregious examples taken from the few judicial discipline orders issued over the last several years.
As employment attorneys, activists and litigators, these examples, apart from the inclusion of a judge, are part of the daily fabric of our lives. The fabric frays and tears when a litigator is personally faced with bias from the bench, when they are subjected to bias while seeking justice for their clients who have been wronged. What does a litigator do when the most powerful member of the legal system, the symbol of impartiality, the very one who is entrusted by the public to administer justice engages in bias themselves? There are options when this unraveling occurs.
CELA is here for you! Aware of the impact of bias in the judiciary on our community, in 2019, CELA established the Committee on Bias in the Judiciary. CELA’s Chair Elizabeth Riles announced the launch of this new committee during the October 2019 Annual Conference in San Jose. Shortly after Elizabeth’s presentation, as I walked the hallway to chat with friends, Elizabeth did what all good leaders do, she scoped out victims, I mean volunteers. I am honored to serve as co-chair of said committee working alongside my amazing peers. In a short period of time, the Committee on Elimination of Bias in the Judiciary, has made tremendous accomplishments discussed in brief here. Initially, we will discuss what one can do should they be faced with the unfortunate need to file a complaint based on bias in the judiciary.
Commission on Judicial Performance
An attorney can make a complaint of judicial bias to the Commission on Judicial Performance (“CJP”). The CJP is an independent state agency responsible for investigating complaints of judicial misconduct and judicial incapacity and for disciplining judges, pursuant to article VI, section 18 of the California Constitution.  Its jurisdiction includes all active California judges, including judges of the Superior Court, Commissioners and Referees, Justices of the Courts of Appeal and California Supreme Court, as well as the conduct of retired and resigned judges, limited to before they departed the bench or when sitting on assignment. The Commission does not have authority over Judges pro tem or temporary judges. Jurisdiction is found for such persons with the California State Bar, or one may wish to complain to the Presiding Judge.
Any individual or group may file a complaint, including litigants, attorneys, jurors, court-watchers, court personnel, prisoners, court administrators, members of the public, judges, and legislators. How to file a complaint with CJP is explained in detailed along with a sample complaint form and the CJP complaint procedure on their website.
Complaints to the CJP and their investigations are confidential. If the CJP orders a formal proceeding, the matter and related documents are available for public inspection. Should a judicial officer be subjected to disciplinary action, advisory letter, private or public admonishment, public censure, or removal from office/involuntary retirement, a judge may petition the Supreme Court to review the discipline taken, other than private admonishment. There does not appear to be a process for the complaining party to appeal the closure of their complaint.
In 2020, the CJP had 1868 judgeships within their jurisdiction, which included 250 commissioners and referees. In 2020, the CJP considered 1,063 new complaints naming 1,320 judges, a total of 874 different judges in total. Of the new complaints, 82 received preliminary investigation. The CJP closed 1,025 complaints without any form of discipline and left 13 complaints open. In 2020, the commission removed one judge (Judge John T. Laettner of Contra Costa County Superior Court), publicly censured one judge (Judge Matthew Gary of Sacramento County Superior Court) and imposed four public admonishments. The commission also issued nine private admonishments and nine advisory letters. Further, the CJP closed one matter without discipline after the judge resigned or retired with an investigation pending.
Several important elements are found in the 2020 statistics. For example, bias or appearance of bias not directed toward a particular class (includes embroilment, prejudgment, favoritism) was the leading type of conduct resulting in discipline in 2020; with ten (10) incidents of discipline. In contrast, bias or appearance of bias toward a particular class was found in only two incidents of misconduct.  Another important notation from 2020 is the drop in Staff Inquiries (investigation of complaints), a factor which has dropped consistently over the years since 2016 to present, now at just 2%. Of the complaints filed and concluded in 2020, 5% originated from attorneys and 2% were from a judge or court staff.
In 2019, the CJP had 1,856 judgeships within their jurisdiction and an additional 288 commissioners and referees. In 2019, the CJP considered 1,241 new complaints which named 1,465 judges, a total of 895 different judges. Of said complaints, 1,129 were closed by the commission, and another 55 were closed following staff inquiries, all with no finding of wrongdoing. In total, within 2019, the commission publicly censured only two judges, imposed four public admonishments, issued five private admonishments and 13 advisory letters. Only one judge was disciplined in 2019 for engaging in bias or appearance of bias toward a particular class. Only four percent of the complaints originated from an attorney, one percent from a Judge or Court staff, and one percent from another source such as anonymous letter or news report.
A 10-year summary of CJP complaint activity confirms a pattern where nearly all complaints made to the commission were closed prior to investigation with no finding of wrongdoing.
The Auditor of the State of California at the request of the Joint Legislative Audit Committee, issued a report on the Commission on Judicial Performance entitled, “Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist,” dated April 2019. The report noted that the CJP must address the following three weaknesses: (1) It does not consistently take all reasonable steps when it investigates alleged misconduct; (2) Its structure and disciplinary processes do not align with best practices; and, (3) It has not worked sufficiently to increase its transparency and accessibility. The State Auditor’s report found that at both the intake and investigative stages, the CJP failed to detect warning signs of ongoing misconduct, including failing to consider trends in the complaints about specific judges, which hindered CJP’s ability to detect and deter chronic judicial misconduct. The Auditor also found that the CJP’s pattern of investigating a small percentage of the complaints it receives was cause for concern, which also caused further problems in identifying patterns of complaints relating to specific judges. The report presented numerous suggestions for improving the CJP, which do not appear to have been implemented as of yet.
Based on the forgoing, it is understandable why attorneys would be reluctant to make a complaint with the CJP or simply be unaware of the CJP. Therefore, we look to other options.
Local Bias Committees
Recognizing the importance of the matter, the court established local bias committees to address bias through education and a complaint process codified in the California Rules of Court. In 1987, a Judicial Council Advisory Committee on Gender Bias in the Courts was appointed by former Chief Justice Rose Elisabeth Bird. As the first woman appointed as a justice of the California Supreme Court, the first woman to serve as Chief Justice of California, and first woman to serve as Chair of the Judicial Council, it is not surprising that Chief Justice Rose Elizabeth Bird led this endeavor. The Advisory Committee was the first committee to focus on bias in the courts in California and is thought to be the first of its kind anywhere in the United States. The importance of Justice Bird’s efforts, especially on behalf of women, to address bias in the courts cannot be underestimated, and is just one of the many reasons attorneys across the state honor Justice Bird for her dedication to diversity.
In 1990, the Advisory Committee submitted a comprehensive report with 68 recommendations that were adopted, including the establishment of local court bias committees. As a result, the local bench/bar communities devoted time to creating bias committees. A Local Bias Committees workshop was held on October 2, 1992, which was a joint venture between the Judicial Council and the State Bar. Approximately 10 local bias committees existed at that time.
A formal report concerning local court bias committees was issued by the Judicial Council in 1996. The Standards of Judicial Administration were renumbered in California Rules of Court (CRC), Rule 10.20 — Court’s duty to prohibit bias.
CRC 10.20 states each court “should” create a “local committee on bias,” details that each court has a duty to ensure fairness in court proceedings, to refrain from engaging in bias and ensure unbiased decisions. CRC 10.20(a), (b)(1). The Rule identifies twelve specific processes for handling complaint procedures, within the required established local bias committee. CRC(c). Each local committee “features of the informal complaint process should be memorialized in the local rules of court.” CRC(d).
In fall 2019, I located said language in the Local Rules of Court in Contra Costa County and found my way onto the Contra Costa County Superior Court Bias Committee. I was excited, invigorated, and hopeful that we had an alternative platform. Thereafter, I proposed to my peers on the CELA Committee on Elimination of Bias in the Judiciary that everyone similar secure a seat for themselves on their local superior court bias committees. Equally excited, committee members set off to do so. Shortly thereafter, I began to hear from my peers that they could not locate their local bias committees. What!? That could not be right, could it?
In late March and early April 2020, I independently conducted a review as co-chair of the CELA Committee on Elimination of Bias in the Judiciary, of the present local rules and the proposed local rules effective July 1, 2020 of each California Superior Court. Upon review, I confirmed there were only a small handful of the 58 Superior Courts in compliance with CRC 10.20. Further, 31 Superior Courts had no reference to bias in their local rules of court.
Thereafter, the Committee on Bias in the Judiciary took steps to address this matter, including actively engaged in public discussions over the last year to bring the dormant CRC 10.20 Rule to the forefront. We began to speak out about what we saw, shedding light on the existence of bias in the courts, including the broken complaint structure, as discussed in several articles in the Daily Journal. Public attention caused movement as multiple Superior Courts took steps to launch new committees, including in San Bernardino, Los Angeles, El Dorado and Alameda. Other counties made efforts to update their Local Rules including in San Diego and Contra Costa County.
Further, on August 28, 2020, the California Supreme Court Committee on Judicial Ethics Opinions (CJEO) sought public comment as to a draft ethics opinion about the duties of a presiding judge or other judge with supervisory duties when investigating a complaint filed against a trial judge. Several individuals and organizations issued public comment, including comments on behalf of justice providers. On November 5, 2020, the CJEO issued a formal ethics opinion about the duties of a presiding judge or other judge with supervisory duties when investigating a complaint filed against a trial judge. See CJEO Formal Opinion 2020-015
Chief Justice’s Work Group to Address Bias in Court Proceedings
On November 4, 2020, Chief Justice Tani G. Cantil-Sakauye announced a new work group to address bias in court proceedings, entitled Work Group to Enhance Administrative Standards Addressing Bias in Court Proceedings (Work Group). The Work Group is tasked with updating the protected classifications listed in CRC 10.20, considering the optimal role and composition of the local bias committees, and other changes to better assist courts in maintaining a courtroom environment free of bias and the appearance of bias.
Chief Justice Cantil-Sakauye appointed eight persons to the Work Group, including five judges and two attorneys: Co-Chairs Administrative Presiding Justice Brad Hill of the Fifth District Court of Appeal (Fresno), and Sacramento County Superior Court Judge Stacy Boulware Eurie; and additional members, Justice Carin Fujiskai, First District Court of Appeal (San Francisco), Presiding Judge Kevin Brazile, Los Angeles Superior Court, Presiding Judge Joyce D. Hinrichs, Humboldt County Superior Court, Chief Executive Officer Nancy Eberhardt, San Bernardino County Superior Court, and Judicial Counsel attorney members Gretchen Nelson and Rachel Hill.
The Work Group initially launched their webpage on or about January 19, 2021. However, it did so with no press. Further, up until recently, and despite numerous requests, the Work Group has not made their meetings, agendas, or minutes public.
On April 26, 2021, the Work Group confirmed they will be holding a public meeting where people can listen and view, but cannot participate. The meeting will be held on Tuesday, May 4, 2021, from noon to 2:00 pm. The Agenda for the May 4th meeting is now available on the Work Group website under meetings.
Before the Work Group makes their final recommendations, there will be a period for open comment, however an estimated date for when this will occur has not been announced. The Work Group anticipates they will make final recommendations to the Chief Justice and the Judicial Counsel in the fall of 2021.
What Can You Do?
- Access the Work Group webpage, be informed and stay informed on the status of the Work Group, and provide comments during the public comment period.
- Please continue to check the website as well for the Tuesday, May 4, 2021, noon to 2:00 pm, meeting.
- Access your Superior Court’s Local Rules of Court, search for a Bias Committee in accordance with CRC 10.20. If it does not exist, the Committee on Bias is happy to help. If it does exist, please consider asking for a seat on said committee.
- The CELA Committee on Elimination of Bias in the Judiciary welcomes new members. Please contact us if you are interested.
As employment attorneys, as advocates for ourselves and for our clients, we are all too aware of the realities of bias, including bias in the courtroom. We must demand a courtroom and proceeding free of bias, a fair procedure in which to present a complaint should bias occur, as well as a transparent evaluation of the complaint process, wherein our voice is heard and incorporated into the fabric of the justice process.
Join me, join our committee, my friends, in demanding better for ourselves, for our clients, for justice, and for our future.
Beth W. Mora, Esq., Mora Employment Law, is a plaintiff employment attorney and can be contacted with questions at firstname.lastname@example.org.
 See Decision and Order Removing Justice Jeffrey W. Johnson from Office, June 2, 2020, California Supreme Court denied writ of review on February 2, 2021, a 111-page decision and order found that Justice Johnson repeatedly victimized women including a Justice, staff of the court and attorneys in the form of inappropriate sexual remarks and unwanted touches; See also Decision and Order Imposing Public Censure Pursuant to Stipulation re: Judge Jeffrey G. Bennet, March 25, 2020, on March 2, 2020 the CJP filed a Notice of Formal Proceedings against Judge Bennett, by March 18, 2020, a stipulation was approved by the Commission ending the proceedings, which confirmed 28 counts including bias based on conduct due to race towards a defendant and multiple sexualized comments to female attorneys. See also Decision and Order Imposing Public Admonishment Pursuant to Stipulation, re: Judge Mathew Gray, Sacramento County Superior Court, May 14, 2020. Finally, see as well Decision and Order Removing Judge John T. Laettner From Office, November 6, 2019, California Supreme Court denied writ of review on June 10, 2020, Commission determined Judge Laettner committed gender bias and inappropriate comments to and about women including a pattern of sexual harassment and sexual discrimination towards attorneys and females in court.
 Elimination of Bias in the Judiciary Committee: This committee was formed in order to address persistent concerns raised by CELA members that we have experienced in our own practice of bias based on race, color, national origin, gender, sexual orientation, disability and other protected classifications by the judiciary. W considering a number of actions to publicly address these issues, and actions that can potentially be taken on an immediate basis to assist CELA members facing these issues. We accomplish this through education, providing resources to members, and effectuating policy change to address these issues. Co-Chairs: first year Barbara Figari Cowan and Beth W. Mora, and second year co-chairs Beth W. Mora and Wendy Musell; Members: Lauren Abrams, Mari Bandoma Callado, Megan Beaman-Jacinto, Hillary Benham-Baker, Craig Byrnes, Barbara DuVan-Clarke, Tracy Fehr, Barbara Figari Cowan, Tamara Freeze, Lisa Mak, Wendy Musell, Elizabeth Riles, Allison Schulman; and, Sereena Singh.
 This article does not cover the important work CELA and this committee has already engaged as to California Rule of Court, Rule 10.351, concerning complaints by court employees.
 In November 2019, the commission issued an order of removal of Judge John T. Laettner of the Contra Costa County Superior Court. In February 2020, Judge Laettner filed a petition for review in the California Supreme Court, which was denied in June 2020. In November 2020, the judge submitted a petition for writ of certiorari in the United States Supreme Court. That petition was denied in December 2020. Because the matter was not concluded at the end of 2019, it was not included in the 2019 case disposition statistics. It is included in the 2020 statistics.
In June 2020, the commission issued an order of removal of Justice Jeffrey W. Johnson of the Court of Appeal, Second Appellate District, Division One. In August 2020, Justice Johnson filed a petition for review in the California Supreme Court. Because the matter was still pending at the end of 2020, it is not included in the 2020 statistics but is summarized in this section.
See 2020 Case Statistics, at pages 20-37.
 See 2020 Case Statistics, at page 19. Further, the Commission has issued a 25-point list of types of conduct for which a Judge may be disciplined for engaging in misconduct. This list includes several areas in which bias can be found, including for example: #4. Bias/Appearance of Bias Toward a Particular Class; #5. Bias/Appearance of Bias Not Directed Toward a Particular Class; #6. Comment on Pending Case; #8. Demeanor/Decorum; #15. Improper Political Activities; and #22. Sexual Harassment/Inappropriate Workplace Gender Comments. There does not appear to be a specific numerated misconduct for failure to report.
 See 22 Counties Not Complying With Bias Committee Recommendation, Daily Journal, by Jessica Mach, July 6, 2020 – 22 Courts confirming they did not have bias committees and 30 Courts not responding to request for information; Bias Committees Are Enigmas, Attorneys Say, Daily Journal, by Jessica Mach, August 3, 2020; and, and, Court Leaders Developing Judicial Guidelines, Daily Journal, by Jessica Mach, September 1, 2020.
 See CJEO Formal Opinion 2020-015 https://www.judicialethicsopinions.ca.gov/wp-content/uploads/CJEO-Formal-Opinion-2020-015.pdf
 Press Release, California Chief Justice Appoints New Work Group to Address Bias in Court Proceedings, November 4, 2020 at https://newsroom.courts.ca.gov/news/california-chief-justice-appoints-new-work-group-address-bias-court-proceedings