Chodosh v. Commission on Judicial Performance ( 2022 )

Filed 7/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
FLOYD CHODOSH, C091221
Plaintiff and Appellant, (Super. Ct. No.
34201800242031CUMCGDS)
v.
COMMISSION ON JUDICIAL PERFORMANCE et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County, David
Brown, Judge. Affirmed.
Law Office of Patrick J. Evans and Patrick J. Evans for Plaintiff and Appellant.
Rob Bonta, Attorney General, Thomas S. Patterson, Senior Assistant Attorney
General, Anthony R. Hakl, and Jerry T. Yen, Deputy Attorneys General, for Defendants
and Respondents.
Plaintiff Floyd Chodosh appeals from a judgment of dismissal entered in favor of
defendants the Commission on Judicial Performance (the Commission), the Department
of Justice, and former Attorney General Xavier Becerra (together with the Department of
1
Justice, the Attorney General; and with the Commission, defendants) after the trial court
sustained defendants’ demurrer to Chodosh’s second amended complaint. Having
carefully considered the record and the parties’ arguments, we conclude Chodosh fails to
state facts sufficient to constitute a cause of action against any defendant. Accordingly,
we will affirm the judgment.
I. BACKGROUND
A. The Parties and Other Relevant Persons
Chodosh was a resident or owner of property in a senior-owned mobile home park.
Prior to bringing the present action, Chodosh was one of several plaintiffs involved in
litigation concerning the mobile home park in Orange County Superior Court.1 The
Honorable Robert J. Moss, Judge of the Orange County Superior Court, was assigned to
the case.2
The Commission is an independent body within California’s Judicial Branch, with
constitutional authority to retire, remove, censure, or admonish a judge, and to disqualify
a judge during the pendency of formal proceedings, subject to review by the California
Supreme Court. (Cal. Const., art. VI, §§ 8, 18, subd. (d).) The Commission is authorized
to “investigate complaints of judicial misconduct and other conduct prejudicial to the
administration of justice, to file formal charges, to hold adjudicative hearings and make
findings, to order less serious discipline on its own authority, and to recommend the
imposition of more serious discipline—including removal from office—” by the
California Supreme Court. (Adams v. Commission on Judicial Performance (1994) 8
Cal.4th 630, 637 (Adams).) The Commission is composed of 11 members, each
1 Dina Padilla was a plaintiff in the mobile home park litigation and a party to the trial
court proceedings but is not a party to the present appeal.
2 Judge Moss is not a party to this action.
2
appointed to a four-year term: one justice of a court of appeal and two judges of superior
courts appointed by the Supreme Court; two attorneys appointed by the Governor; and
six citizens, two appointed by the Governor, two appointed by the Senate Committee on
Rules and two appointed by the Speaker of the Assembly. (Cal. Const., art VI, § 8, subd.
(a).)
The Attorney General is the “chief law officer of the State” and head of the
Department of Justice. (Cal. Const., art. V, § 13; Gov. Code, § 12510; 9 Witkin, Cal.
Procedure (6th ed. 2022) Administrative Proceedings, § 216.) The Attorney General has
a duty to “see that the laws of the State are uniformly and adequately enforced.” (Cal.
Const., art. V, § 13; see also State of California ex rel. Dept. of Rehabilitation v. Superior
Court (1982) 137 Cal.App.3d 282, 287 [interpreting Cal. Const., art. V, § 13 and
concluding that, “this section of the Constitution imposes upon the Attorney General a
discretionary duty to enforce the law”].)
B. Complaint to the Commission
Chodosh submitted a complaint to the Commission in April 2016.3 The complaint
alleged Judge Moss committed judicial misconduct in the mobile home park case by
reassuming jurisdiction over the case after being disqualified. The Commission
acknowledged receipt of the complaint and requested additional information, which
Chodosh provided. The Commission acknowledged receipt of the additional information
in a letter dated July 26, 2016. The letter represented that the matter was “still under
consideration.” Chodosh alleges he heard nothing further from the Commission about
3 The complaint was submitted in the form of a letter by Chodosh’s counsel herein, on
behalf of Chodosh and other plaintiffs in the mobile home park case. For convenience,
we will refer to correspondence from Chodosh’s counsel as correspondence from
Chodosh.
3
the status of the complaint, leading him to conclude that no action was taken with respect
to Judge Moss.
Chodosh then pressed his complaint to the Attorney General. In a letter dated
February 11, 2017, Chodosh summarized the allegations against Judge Moss, enclosed a
copy of a recently filed federal complaint against Moss and others, and urged the
Attorney General to conduct his own investigation. (See Eicherly v. O’Leary (9th Cir.
Jan. 3, 2018, No. 17-55446) 721 Fed.Appx. 625, 627-628 [affirming dismissal of federal
claims against Judge Moss and others on Rooker-Feldman grounds and dismissal of
remaining state law claims for lack of supplemental jurisdiction and remanding for entry
of judgment].) The Attorney General responded by letter dated March 3, 2017. The
letter stated, in pertinent part: “The Department of Justice is committed to upholding and
enforcing state law, but it lacks the resources necessary to review all matters in which
improper activities are alleged.” The letter invited Chodosh to consider contacting the
local district attorney’s office.
Chodosh returned to the Commission, sending an additional round of letters in
September 2017. The letters referred to a recently published report, in which the
Commission purportedly represented that, “The Commission has on multiple occasions
reported possible criminal conduct to prosecuting authorities.”4 Chodosh asked the
Commission to provide data supporting the statement, including the year and number of
referrals, and the agency or authority to which such referrals had been made. The
Commission declined to provide the requested information. A similar letter to the
Department of Justice yielded the same result.
4 An excerpt of the report is attached as an exhibit to the second amended complaint.
The report appears to have been prepared by the Commission and is entitled, “Report
Concerning Adoption of Additions and Amendments to Rules of the Commission on
Judicial Performance.”
4
C. Trial Court Proceedings
Chodosh commenced the instant action in October 2018. The first and second
amended complaints allege Judge Moss committed judicial misconduct by “fixing” the
mobile home park case against Chodosh and the other plaintiffs thereto. Chodosh
expounds at length upon the alleged fix, which is said to have involved a conspiracy to
obstruct justice (Pen. Code, § 182, subd. (a)(5)) and perjury (Pen. Code, § 118). We need
not address these allegations in any detail, as even Chodosh acknowledges that they are
not essential to any cause of action against the Commission or Attorney General.
The first and second amended complaints allege the Commission and Attorney
General systematically fail to discharge their ostensible duties to protect the public from
“judge crime.”5 Chodosh alleges the Attorney General refuses to investigate complaints
about possible criminal conduct by judges, choosing instead to refer all such complaints
to the Commission. But the Commission, Chodosh says, operates behind a veil of
secrecy, relying on rule 102(g) of the Rules of the Commission on Judicial Performance
and policy 4.2 of the Policy Declarations of the Commission on Judicial Performance to
protect judges and conceal their crimes from public view.6
5 Chodosh defines “judge crime” as “crime by a judge done from the bench by misuse of
office and breach of duty and oath, as opposed to ‘personal’ crime such as judge
conviction for [driving under the influence].”
6 Rule 102(g) of the Rules of the Commission on Judicial Performance, entitled
“Disclosure of information to prosecuting authorities,” provides: “The commission may
release to prosecuting authorities at any time information which reveals possible criminal
conduct by the judge or former judge or by any other individual or entity.” Unless
otherwise indicated, subsequent rule references are to the Rules of the Commission on
Judicial Performance.
Policy 4.2, also entitled “Disclosure of information to prosecuting authorities,”
provides: “When, in the course of evaluating complaints or conducting investigations,
commission staff acquires information revealing possible criminal conduct by a judge,
former judge or by any other individual or entity, such information shall be brought to the
5
Chodosh alleges the Commission’s claim to have referred information concerning
possible criminal conduct by judges to prosecuting authorities on “multiple occasions” is
false. According to Chodosh, the Commission seldom, if ever, refers such information to
prosecuting authorities and the Attorney General, for his part, has never prosecuted a
judge. Instead, Chodosh asserts, the Commission spends time and money on trivial
infractions, and works with the Attorney General to ensure that crime committing judges
avoid prosecution. This, Chodosh says, constitutes an essential mission failure and waste
of taxpayer funds by the Commission and Attorney General.
The first amended complaint asserts seven causes of action: (1) declaratory relief
and request for an order directing the Commission to produce statistical information
concerning referrals of possible criminal conduct by judges to prosecuting authorities
pursuant to the public’s constitutional right of access to governmental information (Cal.
Const., art. I, § 3—first amended complaint’s first cause of action); (2) declaratory relief
seeking a determination that the Commission has a mandatory duty to report “judge
crime” to prosecuting authorities (Cal. Const., art. VI, § 18, subd. (m)—first amended
complaint’s second cause of action); (3) a declaration that the Commission violates the
separation of powers provision of the California Constitution (Cal. Const., art. III, § 3—
first amended complaint’s third cause of action); (4) a declaration that the Commission
breached a duty to report evidence of possible criminal conduct by Judge Moss to
prosecutors (Cal. Const., art. VI, § 18, subd. (m)—first amended complaint’s fourth cause
of action); (5) a common law taxpayer cause of action against the Commission (first
amended complaint’s fifth cause of action); (6) a common law taxpayer cause of action
against the Attorney General (first amended complaint’s sixth cause of action); and (7) a
attention of the commission at the earliest possible opportunity for consideration of a
referral of the information to prosecuting authorities. Such a referral requires a vote of a
majority of the commission members.” All subsequent policy references are to the Policy
Declarations of the Commission on Judicial Performance.
6
statutory taxpayer cause of action against defendants (Code Civ. Proc., § 526a—first
amended complaint’s seventh cause of action).
Defendants demurred to the first amended complaint, and the trial court sustained
the demurrer to the causes of action seeking declaratory relief (the first amended
complaint’s first, second, third, and fourth causes of action) without leave to amend. The
trial court sustained the demurrer to the taxpayer causes of action (the first amended
complaint’s fifth, sixth, and seventh causes of action) with leave to amend.
Chodosh filed a second amended complaint. The second amended complaint
asserts four causes of action, styled as follows: (1) a statutory “taxpayer and citizen
lawsuit” against the Commission (Code Civ. Proc., § 526a—second amended complaint’s
first cause of action); (2) a common law “taxpayer and citizen lawsuit” against the
Commission (second amended complaint’s second cause of action); (3) a statutory
“taxpayer and citizen lawsuit” against the Attorney General (Code Civ. Proc., § 526a—
second amended complaint’s third cause of action); and (4) a common law “taxpayer and
citizen lawsuit” against the Attorney General (second amended complaint’s fourth cause
of action).
Defendants demurred to the second amended complaint. The trial court sustained
the demurrer without leave to amend and entered a judgment of dismissal in defendants’
favor. This appeal timely followed.
II. DISCUSSION
A. Standard of Review
On appeal from a judgment based on an order sustaining a demurrer, we assume
all the facts alleged in the complaint are true. (Pineda v. Williams-Sonoma Stores, Inc.
(2011) 51 Cal.4th 524, 528.) We accept all properly pleaded material facts but not
contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkeley (2006)
38 Cal.4th 1, 6.) We determine de novo whether the complaint alleges facts sufficient to
state a cause of action under any legal theory. (Committee for Green Foothills v. Santa
7
Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) “The judgment must be
affirmed ‘if any one of the several grounds of demurrer is well taken.’ ” (Aubry v. Tri-
City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
B. Access to Information
The first amended complaint’s first cause of action seeks a declaration that
Chodosh has a constitutional right of access to certain statistical information from the
Commission. Specifically, the first amended complaint’s first cause of action calls for
the preparation and production of a series of charts reflecting an annual accounting, over
a 21 year period, of: (1) the number of times a staff attorney brought information
concerning possible criminal conduct by a judge to the attention of the Commission; (2)
the number of times the Commission considered referring information concerning
possible criminal conduct by a judge to prosecuting authorities; (3) the number of times
the Commission conducted a vote to decide whether to refer information concerning
possible criminal conduct by a judge to prosecuting authorities; and (4) the number of
times the Commission actually decided, by a majority vote, to refer information
concerning possible criminal conduct by a judge to prosecuting authorities. This
information, Chodosh says, would disprove the Commission’s alleged claim to have
reported possible criminal conduct by judges to prosecutors on “multiple occasions.”
The trial court sustained the Commission’s demurrer to the first amended complaint’s
first cause of action without leave to amend, ruling that Chodosh failed to allege facts
showing he has a constitutional right of access to the requested information. We agree
with the trial court.
The California Constitution provides a right of public access to certain information
about governmental operations. (Cal. Const., art I, § 3, subd. (b)(1).) California voters
passed Proposition 59 in 2004, which amended article I, section 3 of the California
Constitution by adding subdivision (b). (Cal. Const., art I, § 3, subd. (b); POET, LLC v.
State Air Resources Bd. (2013) 218 Cal.App.4th 681, 750.) Subdivision (b)(1) states that
8
the “people have the right of access to information concerning the conduct of the people’s
business, and, therefore, the meetings of public bodies and the writings of public officials
and agencies shall be open to public scrutiny.”
Chodosh argues the Commission conducts the people’s business with regard to the
regulation of judges, and that business includes making appropriate referrals to
prosecuting authorities. (See rule 102(g); policy 4.2.) Accordingly, Chodosh reasons
that article I, section 3 of the California Constitution gives him a right of access to
statistical information showing referrals of possible criminal conduct by judges to
prosecuting authorities. We need not decide whether article I, section 3, subdivision (b)
of the California Constitution gives the people a right of access to statistical information
from the Commission generally, because we conclude Chodosh does not have a right of
access to the specific information sought here.
Article I, section 3, subdivision (b)(5) of the California Constitution contains a
savings clause which provides: “This subdivision does not repeal or nullify, expressly or
by implication, any constitutional or statutory exception to the right of access to public
records or meetings of public bodies that is in effect on the effective date of this
subdivision . . . .” One such exception can be found in article VI, section 18,
subdivisions (i) and (j) of the California Constitution, which was enacted by Proposition
190 in 1994, before the passage of Proposition 59. (See Recorder v. Commission on
Judicial Performance (1999) 72 Cal.App.4th 258, 262-265 [discussing the passage of
Proposition 190].)
Article VI, section 18, subdivision (i)(1) of the California Constitution authorizes
the Commission to “make rules for the investigation of judges,” including rules which
“provide for the confidentiality of complaints to and investigations by the commission.”
The Commission’s confidentiality rules are contained in rule 102. Rule 102(a) provides,
with exceptions not relevant here, that “all papers filed with and proceedings before the
commission shall be confidential.” (See Commission on Judicial Performance v.
9
Superior Court (2007) 156 Cal.App.4th 617, 622 [“rule 102 provides that, except as
stated in that rule, all nonpublic papers and proceedings are absolutely confidential”].)
“The confidentiality of the Commission’s investigations is based on sound public
policy. Confidentiality encourages the filing of complaints and the willing participation
of citizens and witnesses by providing protection against possible retaliation or
recrimination. It protects judges from injury which might result from the publication of
unexamined and unwarranted complaints by disgruntled litigants or their attorneys, or by
political adversaries, and preserves confidence in the judiciary as an institution by
avoiding premature announcement of groundless claims of judicial misconduct or
disability. Confidentiality is essential to protecting the judge’s constitutional right to a
private admonishment if the circumstances so warrant, and when removal or retirement is
justified by the charges, judges are more likely to resign or retire voluntarily without the
necessity of a formal proceeding if the publicity that would accompany such a proceeding
can thereby be avoided. Leading writers have recognized that confidentiality of
investigations and hearings by the Commission is essential to its success.” (Commission
on Judicial Performance v. Superior Court, supra, 156 Cal.App.4th at p. 622.)
The Commission’s confidentiality rules change when disciplinary proceedings
advance from the preliminary or investigative stages to formal proceedings. Article VI,
section 18, subdivision (i)(2) of the California Constitution authorizes the Commission to
“make rules for formal proceedings against judges when there is cause to believe there is
a disability or wrongdoing within the meaning of subdivision (d).”7 When the
7 Article VI, section 18, subdivision (d) of the California Constitution provides in
pertinent part: “Except as provided in subdivision (f), the Commission on Judicial
Performance may (1) retire a judge for disability that seriously interferes with the
performance of the judge’s duties and is or is likely to become permanent, or (2) censure
a judge or former judge or remove a judge for action occurring not more than 6 years
prior to the commencement of the judge’s current term or of the former judge’s last term
that constitutes willful misconduct in office, persistent failure or inability to perform the
10
Commission commences formal proceedings, “the notice of charges, the answer, and all
subsequent papers and proceedings shall be open to the public.” (Cal. Const., art. VI,
§ 18, subd. (j); see also rule 102(b) [“Disclosure after institution of formal
proceedings”].) Thus, article VI, section 18, subdivisions (i) and (j) of the California
Constitution, as implemented by rule 102, contemplate that papers and proceedings
brought before the commencement of formal disciplinary proceedings “shall be
confidential,” (rule 102(a)) while papers and proceedings brought after the
commencement of such proceedings “shall be open to the public” (Cal. Const., art. VI, §
18, subds. (i) and (j)). (See also Adams, supra, 8 Cal.4th at p. 651 [“maintaining
confidentiality before the commencement of formal proceedings involving judicial
performance serves legitimate state interests by avoiding premature announcement of
groundless claims of judicial misconduct”].)
The first amended complaint’s first cause of action seeks statistical information
reflecting all referrals of possible criminal conduct by judges, whether or not formal
proceedings have been initiated. Chodosh argues the requested statistical information
would not implicate the Commission’s confidentiality rules, because the information
“would reveal no names or detail, simply numbers.” The Commission responds that the
requested statistical information relates to actions taken and decisions made before the
commencement of formal proceedings, and thus interferes with its confidentiality
mandate. The Commission has the better argument.
“As a general rule, past or contemporaneous interpretation by an administrative
entity of its constitutional authority, and of a constitutional provision it is charged with
judge’s duties, habitual intemperance in the use of intoxicants or drugs, or conduct
prejudicial to the administration of justice that brings the judicial office into disrepute, or
(3) publicly or privately admonish a judge or former judge found to have engaged in an
improper action or dereliction of duty. The commission may also bar a former judge who
has been censured from receiving an assignment, appointment, or reference of work from
any California state court.”
11
implementing, is accorded considerable weight [citation], and courts generally will not
depart from such construction unless it is clearly erroneous or unauthorized.” (Adams,
supra, 8 Cal.4th at pp. 657-658.) The first amended complaint does not allege facts
supporting an inference that the Commission’s interpretation of rule 102(a) was clearly
erroneous or unauthorized.
Although the first amended complaint’s first cause of action purports to seek only
“numbers,” Chodosh acknowledges those numbers are likely to be rather small, raising
the possibility that the requested statistical information could be associated with specific
judges, who might then be identified. Such an association and possible identification
would be facilitated by the sequential nature of the requests, which seek annual statistics
tracking the progress of investigations through the Commission’s internal review process,
from the time a staff attorney brings information concerning possible criminal conduct to
the Commission’s attention, to the time the Commission votes to refer the matter to
prosecutors. These numbers would undoubtedly become smaller as investigations made
their way through the preliminary stages (see generally rule 111), offering an increasingly
detailed view of the Commission’s deliberative process. The Commission could have
concluded that the requests, as presented, would interfere with the confidentiality of the
Commission’s investigations. (Cal. Const., art. VI, § 18, subd. (i)(1); rule 102(a); see
also Recorder v. Commission on Judicial Performance, supra, 72 Cal.App.4th at pp. 262,
282 [reviewing Cal. Const., art. VI, § 18, subds. (i) and (j) and concluding that
Commission’s deliberations and thought processes need not be disclosed to the public].)8
8 We perceive another potential problem with the first amended complaint’s first cause
of action: Chodosh does not allege the information he seeks currently exists in the form
in which he seeks it. To the contrary, the first amended complaint’s first cause of action
appears to call for the creation of new records, which would present the requested
information in a particular format. Specifically, the first amended complaint’s first cause
of action seeks an order compelling the Commission to respond to written
“interrogatories” by populating fields of data within a series of tables reflecting referrals
12
Nothing in the first amended complaint supports an inference that such a conclusion
would have been clearly erroneous or unauthorized. The trial court properly sustained
the demurrer to the first amended complaint’s first cause of action.
C. Duty to Report “Judge Crime”
The first amended complaint’s second cause of action seeks a declaration that the
Commission has a mandatory constitutional duty to report “judge crime” to prosecuting
authorities. The first amended complaint’s fourth cause of action seeks a declaration that
the Commission breached that duty by failing to report Judge Moss. The trial court
sustained the demurrer to both causes of action on the ground that no authority supports
the existence of such a duty. Once again, we agree with the trial court.
Chodosh argues support for the existence of a mandatory duty to report
information concerning possible criminal conduct by judges can be found in a series of
authorities, beginning with article VI, section 18, subdivision (m) of the California
Constitution. Subdivision (m) provides: “The Supreme Court shall make rules for the
conduct of judges, both on and off the bench, and for judicial candidates in the conduct of
their campaigns. These rules shall be referred to as the Code of Judicial Ethics.” (Cal.
Const., art. VI, § 18, subd. (m).) Chodosh does not suggest that subdivision (m), alone,
imposes a duty to report “judge crime.” Instead, he directs our attention to canon 3D(1)
of the California Code of Judicial Ethics (canon 3D(1)), which he says stands for the
principle that a “judge that is aware of another judge that is or may be committing crimes
and contemplated referrals to prosecutors. The first amended complaint does not allege
the Commission maintains the requested information in the requested format, and
Chodosh does not offer any authority to support the argument that the public’s right of
access to information includes a right to require a governmental agency to create new
records to satisfy a request. (Cf. Sander v. Superior Court (2018) 26 Cal.App.5th 651,
665-666 [State Bar was not under a duty to create new records in response to request for
information under the California Public Records Act (Gov. Code § 6250 et seq.)].) The
Commission does not raise this issue, however, so we mention it only in passing.
13
must report such possible judge crime to prosecuting authorities.”9 We disagree with this
construction of the rule.
Canon 3D(1) provides: “Whenever a judge has reliable information that another
judge has violated any provision of the Code of Judicial Ethics, that judge shall take
appropriate corrective action, which may include reporting the violation to the
appropriate authority.” Chodosh argues canon 3D(1) has the force of law by virtue of
article VI, section 18, subdivision (m) of the California Constitution, and imposes a
mandatory duty on the Commission (or at least the three judicial members of the
Commission) to report “judge crime.” We are not convinced.
By its terms, canon 3D(1) is concerned with reporting by judges of potential
violations of the California Code of Judicial Ethics, not the Penal Code. The California
Code of Judicial Ethics sets forth the standards of conduct to which judges are held.
(Adams, supra, 8 Cal.4th at pp. 661.) These standards are described, in part, in the
canons, which “do not have the force of law or regulation,” but “ ‘reflect a judicial
consensus regarding appropriate behavior’ for California judges.” (Id. at pp. 661-662;
Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 883, fn. 5
[same]; and see e.g., Cal. Code of Jud. Ethics, canon 3B(4) [“A judge shall be patient,
dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the
judge deals in an official capacity”].) “The failure of a judge to comply with the canons
‘suggests performance below the minimum level necessary to maintain public confidence
in the administration of justice.’ ” (Adams, supra, at p. 662.) The California Code of
9 The first set of judicial canons was adopted in 1949 by the Conference of California
Judges (now the California Judges Association). (See Cal. Code of Jud. Ethics, preface.)
The canons, then called the Code of Judicial Conduct, were modified from time to time
until 1995, when article VI, section 18, subdivision (m) was added to the California
Constitution. (Cal. Code of Jud. Ethics, preface.) The Supreme Court adopted the Code
of Judicial Conduct on an interim basis in 1992, and formally adopted the Code of
Judicial Ethics in 1996. (Ibid.)
14
Judicial Ethics does not specifically address criminal conduct by judges, other than to say
that, “Nothing in the code shall . . . provide a separate basis for civil liability or criminal
prosecution.” (Cal. Code of Jud. Ethics, preamble.)
We agree with the authorities that have concluded canon 3D(1) does not have the
force of law. (Adams, supra, 8 Cal.4th at pp. 661-662; Fletcher v. Commission on
Judicial Performance, supra, 19 Cal.4th at p. 883, fn. 5.)10 We are not persuaded that
canon 3D(1) applies to the Commission as an entity, in contrast to the individual judges
serving as members of the Commission. (Cal. Const., art VI, § 8, subd. (a).) We also
question whether canon 3D(1) applies to violations of the Penal Code, given that the
plain text references only violations of the California Code of Judicial Ethics.11
Nevertheless, we will assume without deciding that each of these premises are true. Even
so assuming, we see no basis for concluding that canon 3D(1) imposes a mandatory duty
to report information concerning possible “judge crime” in all circumstances, as Chodosh
would have us do.
Canon 3D(1) imposes an obligation on judges to “take appropriate corrective
action” with respect to “reliable information that another judge has violated any provision
of the [California] Code of Judicial Ethics.” This does not require reporting in all
10 Chodosh attempts to distinguish Adams, supra, 8 Cal.4th 360 and Fletcher v.
Commission on Judicial Performance, supra, 19 Cal.4th 865 on the ground that neither
case considered the California Code of Judicial Ethics mandated by article VI, section 18,
subdivision (m) of the California Constitution. According to Chodosh, article VI, section
18, subdivision (m) of the California Constitution elevates canon 3D(1) to a
constitutional requirement. We disagree, but we need not closely examine the argument,
as we conclude canon 3D(1) is not reasonably susceptible to Chodosh’s interpretation.
11 We acknowledge, however, that the conduct underlying some violations of the
California Code of Judicial Ethics could also constitute violations of state or federal
criminal laws. (See, e.g., Danser v. Public Employees’ Retirement System (2015) 240
Cal.App.4th 885, 887 [discussing conviction of superior court judge for conspiracy to
obstruct justice].)
15
circumstances. Rather, canon 3D(1) specifies that “appropriate corrective action . . . may
include reporting the violation to the appropriate authority.”12 (Italics added.) By
definition, “appropriate corrective action” may sometimes involve some other response.
(Ibid.) Whether and where to report the violation is left to the discretion of individual
judges.
That canon 3D(1) requires judges to exercise judgment seems clear from the text
of the rule. Any doubts on this score are set to rest by the Advisory Committee
commentary, which states: “Appropriate corrective action could include direct
communication with the judge . . . who has committed the violation, writing about the
misconduct in a judicial decision, or other direct action, such as a confidential referral to
a judicial or lawyer assistance program, or a report of the violation to the presiding judge,
appropriate authority, or other agency or body.” (Advisory Com. commentary, foll.
canon 3D(1), italics omitted.) As one treatise explains: “This commentary makes it clear
that judgment is required as to the level of corrective action, which should involve
weighing factors such as the nature of the violation, the amenability of the judge who
committed the violation to correcting his or her behavior, and whether it is an isolated
incident or represents a pattern of behavior.” (Rothman, et al., California Judicial
Conduct Handbook (4th ed. 2017) § 5:65, p. 323 (Handbook).) Canon 3D(1) does not
specifically address information concerning possible criminal conduct by judges and does
12 The Advisory Committee commentary to canon 3D(1) explains: “ ‘Appropriate
authority’ means the authority with responsibility for initiation of the disciplinary process
with respect to a violation to be reported.” (Advisory Com. commentary, foll. canon
3D(1).) This definition, which focuses on disciplinary action rather than penal sanctions,
suggests that canon 3D(1) is concerned with violations of the California Code of Judicial
Ethics, rather than possible violations of the Penal Code.
16
not impose an affirmative obligation on judges to report such information to
prosecutors.13
Though canon 3D(1) may be silent on the subject of possible criminal conduct by
judges, policy 4.2 and rule 102(g) are not. Policy 4.2 requires members of the
Commission to consider information concerning possible criminal conduct by a judge,
and determine, by a majority vote, whether the information should be referred to
prosecutors. Rule 102(g) provides that the Commission “may release to prosecuting
authorities at any time information which reveals possible criminal conduct by the judge
or former judge or by any other individual or entity.” (Italics added.) Together, policy
13 Chodosh cites an earlier edition of the Handbook, which says: “In cases in which a
judge has reliable information that another judge has committed a serious criminal
offense, the conduct must be reported to the appropriate authority that would include not
only the Commission on Judicial Performance, but the appropriate law enforcement
agency.” (Rothman, et al., California Judicial Conduct Handbook (2d ed. 1999) § 5.65,
p. 153 (1999 Handbook).) According to Chodosh, the 1999 Handbook recommends that
violations be reported to both the Commission and “the appropriate law enforcement
agency.” (Emphasis omitted.) But the 1999 Handbook could also be understood to
recommend that violations be reported to an “appropriate authority,” which could include
either the Commission or “the appropriate law enforcement agency.” After all, the 1999
Handbook does not recommend reporting violations to the “appropriate authorities.” We
need not linger over this question, however, as the recommendation does not appear in
any subsequent edition of the Handbook.
Chodosh also directs our attention to a November 10, 2006 memorandum from the
Judicial Council of California to presiding judges of the superior courts. The
memorandum includes illustrations of corrective actions drawn from the 1999 Handbook
and other sources. The memorandum refers to the above-quoted language from the 1999
Handbook, but notes: “It is important to bear in mind that people may differ in their view
of what constitutes appropriate corrective action, and the [Commission] may not agree
with the actions recommended below by . . . Judge Rothman.”
The 1999 Handbook and memorandum are not binding and do not support the existence
of a mandatory constitutional duty to report information concerning possible criminal
conduct by a judge to prosecutors.
17
4.2 and rule 102(g) confirm that the decision to report information concerning possible
criminal conduct by a judge rests in the discretion of the Commission.
Chodosh argues policy 4.2 and rule 102(g) are unconstitutional, because they
authorize an exercise of discretion that canon 3D(1) forecloses. This argument rests on
the premise that canon 3D(1) imposes a mandatory reporting obligation, which we have
already rejected.
Canon 3D(1) does not impose an affirmative obligation on judges to report any
and all information concerning possible criminal conduct by another judge to prosecuting
authorities, but rather, imposes an obligation to take “appropriate corrective action, which
may include reporting the violation to the appropriate authority.” (Canon 3D(1), italics
added.) For this reason, the first amended complaint fails to allege facts showing that the
Commission (or any member of the Commission) owed or breached a duty to report
information concerning possible criminal conduct by Judge Moss to prosecutors. The
trial court properly sustained the demurrer to the first amended complaint’s second and
fourth causes of action.
D. Separation of Powers
The first amended complaint’s third cause of action alleges the Commission
violates separation of powers principles by exercising power delegated to the Attorney
General.14 Specifically, the first amended complaint’s third cause of action alleges the
Commission usurps the Attorney General’s prosecutorial authority by receiving
complaints about possible criminal conduct by judges from the public, and exercising
discretion as to whether information gathered in the course of investigating such
14 The opening brief argues the Attorney General violates separation of powers
principles by abdicating his or her responsibility to prosecute “judge crime.” However,
the first amended complaint asserts the third cause of action for violating separation of
powers principles against the Commission only. No such cause of action is alleged
against the Attorney General.
18
complaints should be referred to prosecuting authorities. The third cause of action seeks
a declaration that the Commission violates separation of powers principles by exercising
power delegated to the Attorney General to decide whether information concerning
possible criminal conduct by judges should be criminally investigated and prosecuted.15
The trial court properly sustained the demurrer to the third cause of action.
Article III, section 3 of the California Constitution provides: “The powers of state
government are legislative, executive, and judicial. Persons charged with the exercise of
one power may not exercise either of the others except as permitted by this Constitution.”
(Italics added.) The Commission was created by constitutional amendment (Cal. Const.,
art. VI, § 8), and has authority to “investigate complaints of judicial misconduct, a
judge’s failure or inability to perform the duties of a judge, and other conduct prejudicial
to the administration of justice.” (Mosk v. Superior Court (1979) 25 Cal.3d 474, 489-
490.) However, the Commission has no right or duty to prosecute any public offense.
(McComb v. Superior Court (1977) 68 Cal.App.3d 89, 97 [“The commission has no
authority to prosecute or punish a person charged with a public offense; the power of the
commission extends no further than to recommend to the Supreme Court the removal or
retirement of a judge who is the subject of a proceeding under article VI, section 18 of the
Constitution”].) Rather, “[t]he prosecution of criminal offenses on behalf of the People is
the sole responsibility of the public prosecutor.” (Dix v. Superior Court (1991) 53 Cal.3d
442, 451; see also Govt. Code, § 26500 [“The district attorney is the public prosecutor,
except as otherwise provided by law. The public prosecutor shall attend the courts, and
within his or her discretion shall initiate and conduct on behalf of the people all
15 The third cause of action also seeks a declaration that the Commission “cannot decide
to not report but rather must and shall, at all times and without exception, report evidence
of possible judge crime to the executive branch.” We have already considered and
rejected this contention.
19
prosecutions for public offenses”]; Cal. Const., art. V, § 13 [“When required by the
public interest or directed by the Governor, the Attorney General shall assist any district
attorney in the discharge of the duties of that office”].)
Chodosh contends the Commission usurps the Attorney General’s prosecutorial
authority by acting as a repository for complaints alleging criminal conduct by judges.16
Chodosh further contends the Attorney General abdicates his prosecutorial duty and
acquiesces in the alleged usurpation of authority by the Commission, by telling members
of the public to direct such complaints to the Commission, rather than investigating them
himself. These arguments lack merit.
The Attorney General’s purported policy of directing complaints to the
Commission does not support an inference that the Commission exercises prosecutorial
authority with respect to any alleged criminal conduct by judges. The Commission has
authority to investigate judges and exercise discretion in deciding whether information
concerning possible criminal conduct by judges should be referred to prosecuting
authorities. (Mosk v. Superior Court, supra, 25 Cal.3d at pp. 489-490; see also rule
102(g); policy 4.2.) However, the exercise of discretion in deciding whether to refer
information to prosecuting authorities is not the exercise of prosecutorial discretion or
authority. Nothing in the first amended complaint suggests the Commission prosecutes
crimes for the Attorney General or decides for the Attorney General whether information
referred by the Commission should be prosecuted. The trial court properly sustained the
demurrer to the third cause of action. (See Adams, supra, 8 Cal.4th at p. 649
16 The first amended complaint alleges the Attorney General directs all such complaints
to the Commission, including complaints alleging noncriminal misconduct by judges.
We note the complaint to the Commission here alleges noncriminal conduct by Judge
Moss.
20
[Commission’s exercise of authority granted by California Constitution does not
contravene separation of powers].)
E. Taxpayer Causes of Action
The second amended complaint asserts four causes of action against the
Commission and Attorney General, each styled as a “taxpayer and citizen lawsuit” under
Code of Civil Procedure section 526a or the common law. The second amended
complaint’s first and second causes of action seek declarations that the Commission does
not discharge its duty to protect the public from judicial corruption but relies on rule
102(g) and policy 4.2 to suppress information concerning possible criminal conduct by
judges and shield crime committing judges from prosecution, all at taxpayer expense.
The second amended complaint’s third and fourth causes of action seek declarations that
the Attorney General has a mandatory duty to enforce California law against crime-
committing judges and allocate resources to the investigation and prosecution of “judge
crime.” The trial court sustained the demurrer to the taxpayer causes of action on the
ground that the second amended complaint fails to allege facts establishing the existence
of a mandatory duty requiring the Commission to refer information concerning possible
criminal conduct by judges to prosecuting authorities. We perceive no error.
“A taxpayer may bring suit against government bodies pursuant to Code of Civil
Procedure section 526a and based on common law.” (California Taxpayers Action
Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115, 141.) Code of Civil
Procedure section 526a authorizes “[a]n action to obtain a judgment, restraining and
preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other
property of a local agency, . . . against any officer thereof, or any agent, or other person,
acting in its behalf.” (Code Civ. Proc., § 526a, subd. (a).) Common law taxpayer suits
are limited to the “ ‘grounds [of] fraud, collusion, ultra vires, or a failure to perform a
duty specifically enjoined.’ ” (California Taxpayers Action Network v. Taber
Construction, Inc., supra, at p. 141.) “Nevertheless, under either Code of Civil Procedure
21
section 526a or the common law, ‘[t]axpayer suits are authorized only if the government
body has a duty to act and has refused to do so. If it has discretion and chooses not to act,
the courts may not interfere with that decision.’ ” (San Bernardino County v. Superior
Court (2015) 239 Cal.App.4th 679, 686; see also Elliott v. Superior Court (1960) 180
Cal.App.2d 894, 897 [“If a taxpayer could sue on behalf of the state, or one of its
agencies, for a cause of action which the state or the agency has refused to assert on a
matter within its discretion, the discretion to act would no longer reside in the executive
or administrative official but in the taxpayers”].)17
Chodosh argues the trial court erred in sustaining the demurrer to the second
amended complaint’s first cause of action, the statutory “taxpayer and citizen” cause of
action against the Commission. He sounds a now familiar refrain, arguing the
Commission “has a mandatory duty to refer judge crime to prosecutors.” We have
already rejected this argument. To reiterate, rule 102(g) and policy 4.2 authorize the
Commission to exercise discretion in deciding whether to report information concerning
possible criminal conduct by judges to prosecutors. Canon 3D(1) does not change this
conclusion, and the second amended complaint does not suggest any other basis for
imposing a mandatory duty on the Commission. The trial court properly sustained the
demurrer to the second amended complaint’s first cause of action.
Chodosh argues the trial court erred in sustaining the demurrer to the second
amended complaint’s second cause of action, the common law taxpayer cause of action
against the Commission. He argues the trial court ignored allegations that the
Commission colludes with the Attorney General to suppress information concerning
17 Chodosh does not raise any specific arguments concerning the second amended
complaint’s “citizen” and “waste” allegations in the opening brief. He touches on these
themes in the reply brief, but we do not consider arguments raised for the first time in a
reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
22
possible criminal conduct by judges, falsely claims to have reported such information to
prosecuting authorities on “multiple occasions,” and acts ultra vires by serving as the sole
authority for “judge crime.” The trial court’s ruling belies this contention. The ruling
makes clear that the trial court considered the allegations but found them to be
“conclusory and insufficient.” Chodosh does not address the trial court’s reasoning
(other than to say it was wrong) and does not attempt to show the allegations of fraud,
collusion, and ultra vires acts were sufficient. We decline to make such arguments for
him.
Chodosh perfunctorily argues the trial court erred in sustaining the demurrer to the
second amended complaint’s third and fourth causes of action, the statutory and common
law taxpayer causes of action against the Attorney General. With respect to both causes
of action, Chodosh argues, without citation to any authority, that the Attorney General
has a mandatory duty to investigate and prosecute “judge crime.” The trial court rejected
this argument, stating: “The Constitution provides the Attorney General with the
discretion to enforce the law.” (State of California ex rel. Dept. of Rehabilitation v.
Superior Court, supra, 137 Cal.App.3d at p. 287 [article V, section 13 of the California
Constitution “imposes upon the Attorney General a discretionary duty to enforce the
law”].) Chodosh does not make any effort to explain why the trial court’s reasoning was
incorrect. Again, we decline to develop such arguments for him.
F. Leave to Amend
When a trial court has sustained a demurrer without leave to amend, the plaintiff
has the burden of proving how an amendment would cure the defect. (Schifando v. City
of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Chodosh does not address or request
leave to amend in his appellate briefs, and does not attempt to show how any cause of
action might be rehabilitated. He has therefore forfeited the issue and we need not
consider whether the trial court abused its discretion in sustaining the demurrers without
leave to amend. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 369; see also
23
Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44 [“Where the
appellant offers no allegations to support the possibility of amendment and no legal
authority showing the viability of new causes of action, there is no basis for finding the
trial court abused its discretion when it sustained the demurrer without leave to amend”].)
III. DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P.J.
/S/
KRAUSE, J.
24