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19 Cal.4th 865; 81 Cal.Rptr.2d 58; 968 P.2d 958 [Dec. 1998]

[No. S058378. Dec. 31, 1998.]

J>^

THOMAS B. FLETCHER, a Judge of the Superior Court, Petitioner, v.


COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

SUMMARY

The Commission on Judicial Performance recommended that the Supreme


Court remove a judge from office for willful misconduct and "conduct
prejudicial to the administration of justice that brings the judicial office into
disrepute" (Cal. Const., art. VI, 18, former subd. (c); now Cal. Const., art.
art. VI, 18, subd. (d)).
The Supreme Court ordered that the judge be removed from office. The
court held that removal from office was warranted. The judge committed
multiple acts of willful and prejudicial misconduct, including ex parte
communications with parties or witnesses in several criminal cases, multiple
undignified reactions to parties' disqualification motions, and mishandling
of criminal cases. Together, these incidents reflected a continuing, pervasive
pattern of misconduct, and the judge's lack of judicial temperament was
manifest. Also, the incidents of misconduct occurred during virtually the
judge's entire term in office, and his previous legal experience should have
acquainted him with proper procedures. Moreover, rather than expressing
contrition, the judge instead alleged there was a conspiracy against him. This
belied any claim that he had learned from past experience and had modified
his courtroom behavior. It demonstrated instead an inability to appreciate the
importance of, and conform to, the standards of judicial conduct that are
essential if justice is to be meted out in every case. Thus, censure was not
sufficient. (Opinion by The Court. Dissenting opinion by Kennard, J., with
Mosk, J., concurring.)

HEADNOTES

Classified to California Digest of Official Reports


(1)

Judges 6.2DisciplineRemoval From OfficeGroundsWillful Misconduct in OfficeStandard.Under Cal. Const., art. VI,
18, former subd. (c) (now Cal. Const., art. VI, 18, subd. (d)), which

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district attorney. His decision to delegate his judicial power to the


district attorney constituted prejudicial misconduct.
(6)

Judges 6.2DisciplineRemoval From OfficeGroundsWillful Misconduct in OfficeHandling of Criminal Defendant's Request for Drug DiversionAlteration of Minute Order.Substantial evidence supported the conclusion of the Commission on Judicial
Performance that a judge had committed willful misconduct by altering
a minute order directing a criminal defendant to drug diversion. The
judge had engaged in ex parte communications with the defendant's
relatives, determined that there existed a conflict, and deferred to the
district attorney's recommendation of diversion. The judge directed the
court clerk to alter a minute order and, contrary to court policy, not to
indicate that she had changed the order. The evidence strongly suggested he took this action after receiving the commission's inquiry
about his ex parte communications in the case. This was prejudicial
misconduct, regardless of the nature of the alterations. By forwarding
only the altered order, the judge presented the commission with a
grossly incomplete and misleading response. Second, the altered information reflected the judge's disqualification on future diversion violation hearings, but did not indicate that diversion was granted in accordance with the district attorney's recommendation. Third, the record
did not support the judge's claim that the entry on the order was
completed "completely contemporaneously with" the diversion hearing. Fourth, a conflict existed between the order and the reporter's
transcript of the hearing, and given the circumstances of this matter, the
transcript was entitled to more credence. Finally, the record indicated
that, in light of the judge's conflicting explanations concerning the
nature of the documents sent to the commission, it was necessary to
have marked the altered order "corrected."

(7)

Judges 6.2DisciplineRemoval From OfficeGrounds


Prejudicial Misconduct in OfficeEx Parte Contacts With Criminal Defendant Concerning Defendant's Compliance With Plea Bargain.A judge committed prejudicial misconduct by engaging in
improper ex parte contacts with a criminal defendant. Under a plea
agreement, the defendant pleaded guilty to violating court orders,
violating a protective order, and allowing or causing a child to suffer,
and sentencing was continued with dismissal to follow after a year if he
committed no further violations and obeyed court orders. The case
remained pending before the judge, and the defendant often appeared
before the judge for compliance review. When the defendant talked
about committing suicide and other violent acts, the judge recommended that the defendant seek counseling or attend a men's fellowship group that the judge led. At the fellowship meetings the defendant

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discussed the problems that led to the criminal charges pending before
the judge, and by his own admission, the judge viewed himself as the
defendant's probation officer. Thus, the judge would have had to
disqualify himself from hearing any allegations that the defendant
violated his plea bargain. Further, even though the fellowship group
members looked to the Bible for guidance, labeling the judge's conduct
as prejudicial misconduct did not violate the judge's right to practice
his religion. A judge may not participate in an ongoing support group
where defendants with cases pending before him or her discuss their
attempts to comply with the terms of their plea bargains.
(8)

Judges 6.2DisciplineRemoval From OfficeGrounds


Prejudicial Misconduct in OfficeEx Parte Contacts With Criminal DefendantEffect on Sentencing.A judge committed prejudicial misconduct by engaging in improper ex parte contacts with a
criminal defendant and by taking an active part in the subsequent
sentencing of the defendant. The defendant attended the same church as
the judge, had worked on the judge's campaign, and participated in a
men's fellowship group that the judge led. When the defendant pleaded
guilty to a second offense of driving with excessive blood-alcohol
content, the judge felt uncomfortable sentencing the defendant and
decided to allow counsel to agree to the punishment. However, at the
time of sentencing, the judge proposed that, in lieu of a fine and a jail
sentence, the defendant would be required to perform community
service by working on the construction of an addition to the courthouse.
Subsequently, after the addition was not approved, the judge gave the
defendant a list of possible community service projects from which to
choose. This was prejudicial misconduct. The judge recognized that his
ex parte contacts created a conflict, and his initial solution was simply
to cede the sentencing decision to counsel. He did not disclose his ex
parte contacts to the district attorney or to defense counsel. Moreover,
despite his ex parte contacts and his decision not to participate in
sentencing, the judge took control of sentencing and imposed an unusually lenient sentence that included no actual jail time.

(9) Judges 6.2DisciplineRemoval From OfficeGrounds


Prejudicial Misconduct in OfficeEx Parte Contacts With Criminal DefendantTraffic Offender.A judge committed prejudicial
misconduct in handling the case of a traffic offender. The judge knew
the offender, informally discussed the offender's situation at a restaurant, and agreed to give the offender an extension of time in order to
perform community service in lieu of a fine. The judge then altered the
official court file to reflect his informal handling of the matter. This ex

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parte handling of the matter confused the offender and required the
judge to give the offender still another chance after a warrant was
issued when the offender failed either to pay a fine or to perform
community service.
(10)

Judges 6.2DisciplineRemoval From OfficeGrounds


Prejudicial Misconduct in OfficeEx Parte Contacts With Criminal DefendantContinuation of Matter Involving Defendant
Known to Judge.A judge committed prejudicial misconduct in continuing to preside over a zoning violations case despite his personal
knowledge of the relevant circumstances and his ongoing personal
relationship with the defendant. The defendant had been on probation
for brandishing a firearm and subsequently participated in a men's
fellowship group that the judge led. At the group's meetings, the judge
counseled the defendant about the defendant's personality and marital
problems. Also, the judge was aware of the zoning violations and had
advised the defendant to resolve them. Because of the conflict that
these contacts created, the judge exercised no substantive judgment in
considering the district attorney's continuance requests. By his own
admission, the judge thought the district attorney was giving the defendant too much time to clean up his property, creating a potential for
another confrontation with his neighbor. But for his decision not to
make substantive rulings in the case, the judge might not have acceded
to all of the continuance requests. Rather than participating in the case
under these circumstances, he should have recused himself. In failing to
do so, the judge committed prejudicial misconduct.

(11)

Judges 6.2DisciplineRemoval From OfficeGrounds


Prejudicial Misconduct in OfficeEx Parte Contact With Witness.A judge committed prejudicial misconduct by having an ex
parte contact with a witness in a criminal prosecution for assault with a
deadly weapon, a BB rifle. The district attorney proposed that the
defendant plead guilty to simple battery and receive a sentence of eight
days of community service and a fine, since the victim had no objection, and since the Army might not accept the defendant if he served a
jail term. At the court hearing, the judge telephoned the park ranger
who had arrested the defendant and conducted a conversation without
putting the telephone on a speaker so the defendant and counsel could
only hear the judge's side of the conversation. During the conversation,
the judge referred to the defendant as a "punk" and made comments
such as "That's what I thought. Bad attitude." After, the call, the judge
stated that the ranger affirmed that the defendant had a bad attitude, and
the judge stated that he would not accept the prosecutor's proposed

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stated that Henderson was not complying with diversion requirements.


Petitioner then determined that the probation department had not received
notice Henderson was on diversion because the minute order did not reflect
this disposition.
The Commission unanimously found that petitioner's ex parte contacts
with members of Henderson's family constituted prejudicial misconduct.
Petitioner concedes that these contacts "gave 'rise to an appearance of
impropriety,'" "could reasonably be considered prejudicial to public
esteem for the judicial office," and "constituted prejudicial conduct."
(4)(see to. s.) ( S e e former Cal. Code Jud. Conduct, now Cal. Code Jud.
Ethics, canon 3B(7), adopted eff. Oct. 5, 1992 [prohibiting ex parte communications].)5
B.

Contested Charges
1.

Counts One A and Three: Handling of the Henderson Matter

In connection with the Richard Henderson matter, the Commission also


unanimously concluded that petitioner committed prejudicial misconduct in
failing to disqualify himself and willful misconduct in directing alteration of
court records to mislead the Commission.
(a)

Count One A: Failure to Disqualify

At the August 2 hearing on Henderson's case, defense counsel stated that


Henderson had said petitioner was a friend of Henderson's uncle and that
diversion was "a done deal." According to petitioner, on hearing this information, he concluded that Henderson did not deserve diversion because he
was using his parents and uncle to manipulate the court. At that point,
petitioner determined that his ex parte contacts and his feelings about
Henderson had created a conflict and he decided to disqualify himself from
making the diversion decision. Petitioner informed counsel of his decision,
referred the matter to the probation department for preparation of a diversion
report, and scheduled a diversion hearing for September 6. The probation
department's report recommended against diversion, finding Henderson
statutorily ineligible because of a prior conviction.
5
Although the canons of judicial conduct "do not have the force of law or regulation, they
reflect a judicial consensus regarding appropriate behavior, and are helpful in giving content
to the constitutional standards under which disciplinary proceedings are charged. [Citations.]
HQ We therefore expect that all judges will comply with the canons. Failure to do so suggests
performance below the minimum level necessary to maintain public confidence in the
administration of justice." {Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d
826, 838, fn. 6 [264 Cal.Rptr. 100, 782 P.2d 239, 89 A.L.R.4th 235] {Kloepfer).) We cite the
canons that were effective on the date of the misconduct that petitioner committed.

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this decision did not constitute prejudicial misconduct. Regardless of the
likelihood that Henderson would receive diversion, as petitioner conceded
during the Commission proceedings, "legally it was [petitioner's] decision,"
and he "should have . . . set the case for another hearing with another
Judge" rather than address his conflict by ceding his power to the district
attorney. Petitioner's decision to follow the latter course constituted prejudicial misconduct. (See McCartney v. Commission on Judicial Qualifications
(1974) 12 Cal.3d 512, 532 [116 Cal.Rptr. 260, 526 P.2d 268] (McCartney)
[judge improperly delegated judicial power and committed misconduct by
imposing sentences bailiff suggested]; cf. Fewel v. Fewel (1943) 23 Cal.2d
431, 436 [144 P.2d 592] [judicial decisionmaking " 'may not be delegated to
investigators or other subordinate officials or attaches of the court, or anyone
else'"].)
(b)

Count Three: Alteration of Court Records

The record contains three documents entitled "Notice, Sentence, Commitment Form" that purport to memorialize Henderson's September 20 diversion hearing. As to disposition, the first, exhibit No. 17, is blank. The
second, exhibit No. 18, appears to be a copy of the first with addition of the
following handwritten entry for Henderson's sentence: "Formal Diversion
granted. Father to find counselling program."6 The third, exhibit No. 19,
appears to be a copy of the second with a handwritten addition indicating,
"per Dan Pursell," who was the district attorney on the case. Toward the
bottom of the form, the following phrase was added to exhibit No. 19:
"Judge Fletcher Disqualifies himself for any violation of Diversion Hearings." Finally, a handwritten "Post-it" note attached to exhibit No. 19 stated:
"Judge Fletcherdisq. himself."
On October 26, one of the court clerks, Fran Saunders, faxed exhibit No.
18 to the probation department to inform it of the diversion disposition. On
October 25, the Commission sent petitioner a letter of inquiry regarding the
ex parte contacts and the grant of diversion in the Henderson matter.
Petitioner's December 30 response to the Commission letter attached a copy
of exhibit No. 19, but did not inform the Commission that the exhibit
contained entries that did not appear on exhibit No. 18. On November 2, the
Commission obtained a copy of exhibit No. 18 from the probation department as part of the investigation of petitioner. In January 1995, the Commission asked petitioner to comment on allegations that, between October
26, 1994, and his December 30 response to the Commission, during the
Commission's investigation, he directed alteration of the original minute
order.
s

The second document also indicates an additional address for Henderson.

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Saunders testified as follows regarding preparation of these documents:


On September 20, 1994, or sometime after that date but before October 26,
she prepared a minute order in the form of exhibit No. 18.7 She received a
telephone call from the probation department regarding the status of the
case. In response to the inquiry, on October 26, she faxed the probation
department a copy of the then existing minute order, which was in the form
of exhibit No. 18.8 A few days later, petitioner approached Saunders and
directed her to change the minute order to reflect that he had disqualified
himself from future hearings in the case and that diversion was granted "per
Dan Pursell." She asked petitioner whether he wanted her to prepare an
amended minute order, because the court's policy was to prepare amended
orders when existing orders were changed. Petitioner "said no, he didn't, just
to change it." Saunders did not recall petitioner's stating in court on September 20 that he was disqualifying himself from hearings on diversion
violations. She testified that the minute order she originally prepared would
have reflected that disqualification had she heard petitioner make that statement.
(6) On this record, we agree with the Commission's unanimous conclusion that petitioner committed willful misconduct in his handling of the
minute orders. Petitioner directed the clerk to alter a minute order and,
contrary to court policy, not to indicate she had changed the order. The
evidence strongly suggests he took this action after receiving the Commission's inquiry about his ex parte communications in the case. Petitioner told
the Commission he received the inquiry within 48 hours of an October 26
telephone conversation with Henderson's father, and Saunders testified that
petitioner directed her to alter the minute order within a few days of that
date. In any event, petitioner submitted a copy of exhibit No. 19 to the
Commission with his December 30 response without disclosing that he had
directed alteration of the minute order to support his explanation of the
events in the Henderson case. Petitioner's actions in this regard constituted
willful misconduct. (See Wenger v. Commission on Judicial Performance
(1981) 29 Cal.3d 615, 643-645 [175 Cal.Rptr. 420, 630 P.2d 954] (Wenger)
[backdating affidavit was willful misconduct].)
In defense of his actions, petitioner argues that he did not commit willful
misconduct because the alterations simply conformed the minute orders to
7

The testimony was uncertain regarding the origin of exhibit No. 17, the blank minute order
that Henderson signed. The official court file did not contain a copy of an order in this form.
Both Saunders and the court's supervising clerk speculated that exhibit No. 17 was a copy of
a minute order that was prematurely distributed to the parties at the September 20 hearing
before the proceedings were completed and the appropriate entries were made.
8
Saunders did not recall petitioner's telling her that the minute order was incorrect and
incomplete or asking her to send a copy of a corrected order to the probation department.

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the docket entry for the September 20 hearing, which petitioner asserts "was
completed contemporaneously with the court session" and constituted the
court's "official minutes." This docket entry, petitioner maintains, "was the
source of all of the material added to Exhibit 17, to make Exhibits 18 and 19
in order to accurately reflect what had occurred." "This being so," petitioner
continues, "Exhibits 17, 18 and 19 are merely draft documents that cannot be
'altered' and would not mislead experienced readers." According to petitioner, "[fjhe editing of a draft document cannot be an impermissible alteration if the draft document is, as yet, incomplete."
For several reasons, petitioner's response is unpersuasive. First, regardless
of the docket entry, the fact remains that, during the Commission's investigation of the Henderson matter, including petitioner's role in granting
diversion, petitioner directed alteration of the order, directed that the order
not indicate that it had been altered, and sent the Commission a copy of the
altered order without detailing the circumstances. By forwarding only the
altered order, petitioner presented the Commission with a grossly incomplete
and misleading response. (See Adams, supra, 10 Cal.4th at pp. 910-911
[judge's inaccurate and incomplete responses to the Commission constituted
willful misconduct].)
Second, the record contradicts petitioner's contention that the docket entry
reflects all of the information added to the orders. The entry states: "Diversion granted; Judge Fletcher disq. himself for any violation of Diversion
hrgs." Although this entry reflects petitioner's disqualification on future
diversion violation hearings, it does not indicate that diversion was granted
"per Dan Pursell." This alteration of the order was important to support
petitioner's claim that, because he had disqualified himself, he let the
prosecutor make the initial diversion decision.
Third, the record also does not support petitioner's claim that the docket
entry was "completed contemporaneously with" the September 20 hearing.
The initials of the supervising clerk, Velma Dee Buchanan, appear beside the
docket entry, indicating that she made it. However, Buchanan was not the
clerk for the September 20 hearing; Saunders was. Moreover, Buchanan
learned about petitioner's alleged disqualification sometime after September
20, when petitioner discovered that the case file did not reflect disqualification and informed Buchanan of the situation. The record thus suggests that
Buchanan made the docket entry sometime after, and not contemporaneously
with, the September 20 hearing.
Fourth, a conflict exists between the docket entry and the reporter's
transcript of the September 20 hearing. Unlike the docket entry, but consistent with Saunders's recollection, the hearing transcript does not reflect that

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petitioner disqualified himself from future diversion violation hearings. On


the contrary, it shows that petitioner ordered the parties to appear before him
again on March 21, 1995, for a compliance review hearing. Consistent with
the transcription March 21, 1995, Henderson appeared before petitioner for
a diversion review hearing.9 Given all of the circumstances we have detailed,
and the court reporter's certification that the transcript "comprise[d] a full,
true, and correct transcript" of the September 20 hearing, we afford the
reporter's transcript more credence than the docket entry. (See People v.
Smith (1983) 33 Cal.3d 596, 599 [189 Cal.Rptr. 862, 659 P.2d 1152].)
Finally, petitioner's current contention that it was unnecessary to mark the
altered orders as "corrected" stands in stark contrast to his position and the
uncontradicted testimony before the special masters. In addition to Saunders's testimony regarding court policy, which we have already discussed,
petitioner testified that Saunders should have followed court procedures for
preparing an amended minute order in complying with his order to make the
alterations. While cross-examining Saunders, he reiterated that court policy
required her to indicate on the altered order that it was "corrected or
amended," and he challenged her testimony that he "told [her] to break that
policy and violate the law." And, in closing argument to the Commission,
petitioner again stressed that, "if [clerks] add anything to a minute order
after the defendant signed, they are supposed to mark it amended and
supposed [to] get the defendant to agree to it." Buchanan, the court's
supervising clerk, confirmed petitioner's position, testifying that court policy
prohibits clerks from altering signed minute orders like exhibit No. 18
without indicating across the top that they are corrected orders and distributing copies to all parties. She also testified that petitioner's policy was to
ask for preparation of a corrected minute order if he discovered that a minute
order did not reflect his verbal order. Thus, petitioner's current position is
directly contrary to the uncontradicted evidence in the record.
Indeed, petitioner's newly minted explanation is just another example of
his vague and contradictory representations throughout these disciplinary
proceedings regarding these documents. Petitioner maintains that Saunders
faxed exhibit No. 18 to the probation department at his request after he
learned from Henderson's father on October 26 that Henderson was not
complying with diversion requirements. In his February 1995 response to the
Commission's January 1995 inquiry about the matter, petitioner stated: "I
don't recall looking at the minute order or the file on 10-26-94." Regarding
the differences between exhibit Nos. 18 and 19, he stated: "The only
explanation I can offer is that Ms. Saunders sent a FAX copy to the probation
department and then added the rest at some later time." In his answer to the
9

The minute order for that hearing indicates: "Need visiting Judge."

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Commission's notice of formal proceedings, petitioner gave a different


account. He there maintained that, after receiving the call from Henderson's
father on October 26, he "pulled the file," discovered that the minute order
did not correctly reflect that Henderson had been granted diversion pursuant
to the district attorney's "decision" and mat petitioner had disqualified
himself, and "ordered" Saunders to make the necessary corrections and send
it to the probation department. Petitioner's testimony before the special
masters was initially consistent with this latter account, although he additionally noted that the minute order he found in the file on October 26 was
in the form of exhibit No. 18.10 However, after being confronted with his
previous position in his February response, petitioner began to waver as to
whether he looked at the file after the October 26 phone call. Later, in
arguing his case to the Commission, petitioner changed his account once
again. He told the Commission that his "only order to Ms. Saunders was to
fax" the minute order to the probation department. Contrary to his testimony
before the special masters, petitioner told the Commission that he had not
ordered Saunders to amend the minute order. When asked whether he
"direct[ed] her to change it in any way," petitioner replied, "No, I did not,"
and he suggested that Saunders made the changes on her own initiative.11 Of
course, as we have explained, petitioner has shifted his position yet again in
this court, conceding that he directed Saunders to prepare a corrected minute
order, but arguing that this action did not constitute misconduct because the
altered documents were merely incomplete draft orders.
Petitioner's representations regarding his disclosures to the Commission
on this topic are similarly confused and inconsistent. Petitioner initially
testified that, with his December 30 response to the Commission's inquiry
about ex parte communications, he sent copies of both exhibit Nos. 18 and
19 to show that the order had been altered. He then explained that he
obtained a copy of exhibit No. 18 on October 26 when he reviewed the file
after talking with Henderson's father. Later, however, he testified that he
copied exhibit Nos. 18 and 19 when he received the Commission's inquiry
about the matter. He also later testified that he sent the exhibits, not with his
December 30 response, but with his February 1995 response to the Commission's January 1995 inquiry about the altered minute orders. Regarding his
submission of minute orders to the Commission, he then testified: "I'm
sorry. I don't recall now. . . . I remember sending two minute orders, but I
don't remember which they were and when I looked at them . . . ." Later,
petitioner again testified that he sent the two minute orders in response to the
10

This testimony supports Saunders's testimony that she prepared a minute order in the
form of exhibit No. 18 before October 26.
"During his testimony before the special masters, petitioner suggested that Saunders had
made changes "to make it look like [he] was falsifying documents."

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Commission's January 1995 inquiry, but he could not recall how he got a
copy of the order in the form of exhibit No. 18. Before the Commission,
however, petitioner appeared to state that he first received a copy of the
minute order in the form of exhibit No. 18 from the Commission as part of
its January 1995 inquiry. This last statement was consistent with the Commission's position that petitioner never submitted a copy of a minute order in
the form of exhibit No. 18 and that he had only submitted a copy of exhibit
No. 19. Petitioner's continually shifting explanations regarding these exhibits are further evidence of his willful misconduct in attempting to deceive the
Commission. (See Adams, supra, 10 Cal.4th at pp. 910-911 [judge's inaccurate and incomplete responses to the Commission constituted willful misconduct].)
2.

Count One B: Ex Parte Contacts With Peter Vanderputten

In connection with the dissolution of his marriage, Peter Vanderputten


was criminally charged with violating court orders, violating a protective
order, and allowing or causing a child to suffer. Under an agreement with the
district attorney, Vanderputten pleaded guilty to the charges, and sentencing
was continued, with dismissal to follow after a year if he committed no
further violations and obeyed court orders. The case remained pending
before petitioner until he dismissed the charges in accordance with the plea
agreement. During that time, Vanderputten often appeared before petitioner
for compliance review. At some point, Vanderputten talked about committing suicide and other violent acts. In response, and to protect Vanderputten
and his family, petitioner recommended that Vanderputten seek counseling.
As an alternative, petitioner advised Vanderputten that he was welcome to
attend a Saturday morning men's fellowship group that petitioner led.
Vanderputten attended petitioner's fellowship group a few times. The men at
the group were "supporting him and trying to get him to leave his wife alone,
and . . . obey all laws, to act like a reasonable person."
(7) On this record, we agree with the Commission's unanimous conclusion that petitioner committed prejudicial misconduct by engaging in improper ex parte contacts with Vanderputten. (See former Cal. Code Jud.
Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud.
Ethics, canon 3B(7).) The evidence clearly shows that at petitioner's fellowship meetings Vanderputten discussed the very problems that led to the
criminal charges pending before petitioner and his difficulties in accepting
the situation. By his own admission, petitioner viewed himself as Vanderputten's probation officer. In one of his responses to the Commission,
petitioner conceded that, because of these ex parte contacts, he "would have
had to disqualify [him] self from hearing allegations that Vanderputten

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Reagan agreed and [petitioner] gave him a couple of month[s] to complete


and show proof." Petitioner also told Reagan that he had to attend traffic
school. Petitioner then "went back to court," "pulled the file," and indicated
that he had given Reagan "an extension" to perform his community service.
A few months later, a warrant issued because Reagan had not paid his fine.
In court, Reagan stated that "he did not understand what had happen[ed] and
asked for another chance to do the service and attend traffic school . . . ."
In his response to the Commission charges, petitioner stated: "Because I had
handled it, and I did not have a clerk do it, I felt that I should give him one
more chance, and if he failed this time, it would be properly documented by
a clerk. Then he would be charged with failure to pay."
(9) We agree with the Commission's unanimous finding that petitioner
committed prejudicial misconduct in handling the Reagan matter. (See
former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975,
see now Cal. Code Jud. Ethics, canon 3B(7); Code Civ. Proc, 170.1, subd.
(a)(6).) Petitioner informally discussed Reagan's situation at the restaurant
and agreed to give him an extension of time in order to perform community
service in lieu of a fine. Petitioner then altered the official court file to
reflect his informal handling of the matter. According to petitioner's own
response, his ex parte handling of this matter confused Reagan and required
him to give Reagan still another chance after a warrant was issued when he
failed either to pay or to perform community service.
5.

Count One E: Ex Parte Contacts With Steven Pearson

In July 1990, petitioner placed Steven Pearson on probation after he


pleaded guilty to brandishing a firearm. Sometime after sentencing, Pearson
began attending petitioner's Saturday morning fellowship meetings. According to petitioner, Pearson had "serious spousal abuse problems," was a "very
sick man," and had a "very violent temper." Pearson discussed, and petitioner counseled him about, these problems during the fellowship meetings.
Pearson became "a real problem" for petitioner and his wife, and they had
"to discourage him from seeking [them] out."
While Pearson was on probation, he and his wife were charged with
violating zoning laws by keeping piles of junk in their yard. Petitioner was
personally aware of the circumstances underlying the charge; he had stopped
by Pearson's property, seen the junk in the yard, and advised Pearson to
dispose of it. Petitioner believed that Pearson, and not his wife, was responsible for the violation, and petitioner told the district attorney of his belief.
According to petitioner, he also told the district attorney he was disqualifying himself from hearing the case. The district attorney, however, did not

920

FLETCHER V. COMMISSION ON JUDICIAL PERFORMANCE


19 Cal.4th 865; 81 Cal.Rptr.2d 58; 968 P.2d 958 [Dec. 1998]

They had meetings. They associate with each other. They had all one intent
and purpose, to get me removed from the bench." After attacking the
credibility and motives of specific witnesses (referring to one as "the main
instigator behind a lot of these things"), petitioner commented: "I think there
was a lot of shockingto me, the bias, the false testimony that I observed in
that hearing, it devastated me, put me back into the care of my doctor under
stress and tension and depression." Petitioner closed by attacking his head
clerk, asserting: "She was a heavy supporter of a person that opposed me in
the election and she was very vindictive . . . . She gave information out to
everyone that we discussed in confidence. She told other clerks or people
down the hall, and I started out thinking that I was going to be accepted as
a judge in that community, but I didn't realize the power of the people that
resented me to be there and really did not want to cooperate with me."
Petitioner made similar comments during opening argument before the
special masters, asserting that the Commission's evidence came from "biased witnesses" and that its witness list "is mainly people who have decided
that they had some ax to grind against me . . . ." He insisted that "a lot of
this is generated out of retaliation for [his] firing a clerk . . . ." He further
asserted: "So we have a lot of biased people that have their own agenda why
they want to get me or hurt me or in some way attack me . . . ." Petitioner
repeated this theme in his testimony before the special masters. For example,
regarding alteration of the minute orders in the Henderson matter, petitioner
suggested that his clerk was "involved with a group of people that were
sending everything they could find on [him] to the Commission" and that
she had altered one of the orders "to make it look [to the Commission] like
[he] was falsifying documents."
We agree with the Commission that petitioner's conspiracy claims are
reminiscent of those we considered in Gonzalez. There, in imposing a
removal sanction, we commented: "In the final analysis Judge Gonzalez
utterly fails to grasp either the substance or seriousness of the numerous
charges levelled against him by the Commission. Despite multiple admonitions and the normal evidentiary limitations of the hearing process, Judge
Gonzalez has treated this investigation as an attack on his character. . . . He
persists in his theory that his adversaries conspired to record his every
misdeed and regards virtually every allegation as personally motivated.
Rather than respond affirmatively and convincingly to the specific charges,
he expend[ed] most of his defense effort in attacking the character and
credibility of the adverse witnesses. While he concedes there may be certain
minor irregularities in his judicial manner and procedures, he denies he has
ever deliberately abused his judicial office and generally refuses to admit he
has done anything improper." (Gonzalez, supra, 33 Cal.3d at p. 377.)
In summary, the record "belies petitioner's claim that he has learned from
past experience and has modified his courtroom behavior. It demonstrates

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

Joseph Sweeney
San Ramon, CA 94582
Telephone: (510)
Email: joe@courtreformllc.com
September 16, 2016
Via Hand-Delivery and Certified Mail
Mark A. Peterson
District Attorney
Contra Costa County
900 Ward Street
Martinez, CA 94553
Re:

Honorable Bruce C. Mills and Clerk Lori Bogdan


Violation of Government Code 6200 (Alteration of Court Record by Public
Officer)
Violation of Penal Code 470(c) (Forgery on Court Judgment)
Violation of Penal Code 182(a)(1) and (5) (Conspiracy to Commit Crime)

Dear Mr. Peterson,


Summary
I request that the Contra Costa County District Attorneys Office take action on the matter
described herein. The facts and supporting records indicate that either Honorable Bruce C.
Mills or his Clerk, Lori Bogdan, or both, committed forgery and/or conspired to commit
forgery on a filed sentencing judgment in an attempt to double the amount of time I was to
serve in jail after being found in contempt of court by Judge Mills on August 12, 2016.
Facts
On Friday, August 12, I appeared before Honorable Bruce C. Mills in Department 29 of the
Contra Costa County Superior Court. At the conclusion of a contested hearing, Judge Mills
found me in contempt of court on five separate counts for allegedly violating a family law
order that prohibited me from talking or writing about certain information pertaining to my
family law case.
Judge Mills sentenced me to serve 25 days in jail, fined me $5,000, and sanctioned me
approximately $20,000 in attorney fees and costs the maximum penalty under the law.
My requests for a stay of sentencing so that I could file a Writ to appeal the finding of
contempt, challenge the constitutionality of the order, and pursue alleged due process
violations of the hearing, were denied by Judge Mills. He ordered me immediately
remanded. However, I was released when the court discovered that I was entitled to a 72hour stay by court rule.

I reappeared before Judge Mills at 8:30 a.m. on Tuesday, August 16. I was again sentenced
to serve 25 days in jail, penalized $25,000 in fines and sanctions, and immediately taken
into custody. My requests for a stay were again denied.
The sentencing order was filled out in part by Judge Millss clerk, Lori Bogdan, at the
conclusion of the hearing on August 16. Numerous witnesses can confirm this allegation.
The handwritten notes on the order, other than Judge Millss signature, appear to be those
of Ms. Bogdan. The order was signed by Judge Mills, stamped and filed by Ms. Bogdan, and
served at the conclusion of the hearing on August 16. Exhibit A. Numerous witnesses can
confirm this allegation.
On Thursday, August 18, while incarcerated at West County Detention Facility, I
submitted a request to the Operations department of the Contra Costa County Sheriffs
Office to be notified if/when statutory good time credits would be applied and to be
informed of my release date. I did not receive a response.
On Monday, August 22, I submitted another request and spoke with deputies about the
matter on August 22, 23, and 24. Finally, I received a response on Wednesday, August 24
from Civil Superisor, Mary Algandro, stating that good time credits did not apply to my
contempt sentence. Exhibit B.
On Thursday, August 25, my attorney, Jim Morrison (SBN 83772), contacted Ms. Algandro
and informed her that Penal Code 4019(a)(3) required that good time credits be applied to
a civil contempt. Exhibit C. Ms. Algandro informed Mr. Morrison that even if true, a
notation on the order stated:
no good time credits to be given (BCM) (Handwritten note on Page 2 of order)
Mr. Morrison requested a copy of the alleged notation. A copy of the page was faxed to Mr.
Morrison around 10:45 a.m. on August 25. Exhibit D. The copy of the order that Mr.
Morrison received included the notation described above. A timestamp on the order
indicates that it was received by fax by the Sheriffs office on August 17, a day after the
order was filed.
But while the copy of the order received by the Sheriff on August 17 includes the
handwritten notation described above, the filed stamped copy dated August 16
does not. Other than the added note, the copies are identical. Compare Page 2 of the order
in Exhibits C & D (pages 18 & 24 of this complaint).
Mr. Morrison hand-delivered correspondence to Judge Millss mailbox around 1:30 p.m. on
August 25 insisting that the good time credits be applied, wherein he stated that the law
mandated their application. He also noted the inexplicable discrepancy between the filed
order and the Sheriffs copy of the order. Exhibit E.
Within one-and-a-half hours, Judge Mills issued an order granting good time credits, a copy
of which was faxed to Mr. Morrisons office and also faxed to the Sheriff. Exhibit F. I was
informed by a Deputy at West County the same day that my release date would be
commuted to August 28, instead of the original release date of September 9.

The only plausible explanation of these events is that the handwritten note to revoke good
time credits was forged on the sentencing order after it was filed and served, and the
altered version was faxed to the Sheriffs office. As of September 12, the altered version is
still in the court file. No copy of the forged order was ever served on the parties.
It is apparent by inspection that the handwriting of the added note is that of Ms. Bogdan.
Unless Ms. Bogdan acted unilaterally, because the note includes in parentheses, (BCM),
Judge Millss initials, it appears that Judge Mills instructed Ms. Bogdan to add the note
after the order was filed and served on August 16, but before it was faxed to the Sheriff on
August 17.
Further Evidence of Misconduct
At the contempt hearing on Friday, August 12, Judge Mills stated on the record that good
time would be applied and, as such, even if I was sentenced to 25 days, I would only serve
12 or 13 days. Exhibit G. Such a statement indicates that Judge Mills was aware of the
statutory application of good time credits. Indeed, he has been a judge for more than 20
years. A subsequent instruction to revoke good time credits would be contrary to Judge
Millss own statement, and alteration of the order would suggest malicious intent.
Further, at the hearing on August 16, opposing counsel argued that good time credits did
not apply, and Judge Mills refused to accept their argument. At no point during the August
16 hearing did Judge Mills state on the record that he was revoking good time credits. I can
provide the August 16 hearing transcript. The minutes from the August 16 hearing also
provide no indication of such an order. Exhibit H.
After I was released from jail, I went to the Clerks office to obtain a photocopy of the filed
order. Exhibit I. I also took a color photograph of the order. Exhibit J. The filed order
includes the added note. However, it is readily apparent to any person that the note was
written with a different pen. The ink is a different color, and it is thinner than all other
handwriting on the page. The difference can even be observed on the photocopy provided to
me by the Clerk. These facts provide further support that the note was added subsequent to
the order being filed.
Petitioner even filed a motion on August 31, attaching as an exhibit the filed sentencing
order that was served on her, and it does not include the added note.
According to a Classifications Deputy at West County, I was the first person incarcerated at
West County on a civil commitment since the facility opened in 1991, 25 years ago.
It is also important to note that Judge Mills has an extensive history of judicial misconduct.
According to Annual Reports, he has been disciplined five times by the Commission on
Judicial Performance, most recently in 2013 for abusing his power by attempting to alter
the outcome of criminal charges brought against his son:
By communicating his desired resolution of his sons case to the courtroom clerk of the
assigned pro tempore judge through channels not available to the public, [Judge Mills]
created an appearance of impropriety that undermined public confidence in the impartiality
and integrity of the judiciary.

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

Moreover, the fact that both the courtroom clerk and the pro tempore judge were
subordinate to the judge heightened the appearance and reality of impropriety. In
aggravation, [Judge Mills] had been previously disciplined for using his judicial position to
bypass proper channels on behalf of his son. (Commission on Judicial Performance, 2013
Annual Report)
Witnesses and Additional Information
The primary witnesses are Judge Bruce Mills (925-608-1129), Clerk Lori Bogdan (925-6081129), Contra Costa County Sheriffs Office Civil Supervisor Mary Algandro (925-335-1500),
Bailiff of Department 29 (925-608-1129), Jim Morrison (my counsel, 925-432-4731), Staci
Lambright and Michelene Insalaco (counsels for Petitioner, 415-357-5050), and myself (510717-2567).
There were approximately 15 other witnesses present at the hearing on August 16,
including 3-4 other bailiffs, who can confirm that the original order was signed, stamped,
and filed at the conclusion of the hearing. I can provide you with contact information for
some of the other witnesses.
I believe there may also be audio and video recordings of the hearing. I request that your
office obtain and review these records.
Additionally, I was found in contempt of court for putting information on a website, which
was allegedly in violation of an order restraining data on cell phones used by my ex-wife
and me during our marriage. However, none of the information on the webite was actual
data or reproductions of data from the phones. The information on the website had been
previously disclosed in our voluminous public court file by my ex-wife herself.
In order for Judge Mills to find me in contempt, he had to declare that information placed
in a public court file or presented in oral testminony in open court is not actually public
information. Below is an example of an exchange on August 12 between Judge Mills and my
counsel regarding the issue:
THE COURT: Yeah, I don't know why it would be relevant, because it doesn't
constitute a waiver.
MR. MORRISON: I think it goes to whether it's public or private information.
THE COURT: I understand your position. Matters that are put into court pleadings
and brought up in oral argument before the court do not become public thereby.
MR. MORRISON: I -- okay, I believe that that's directly contrary to the law. And I
have a case -THE COURT: I understand your position.
It is a basic legal principle that information placed in a court file or presented in open court
becomes public. This is one example of absurd legal conclusions that Judge Mills used to
hold me in contempt. I can provide more examples. It is untenable for Judge Mills to claim

that he did not understand such fundamental principles of law. His actions further support
malicious intent.
I can provide full transcripts of the August 12 and August 16 hearings, further testimony
and/or a copy of my Petition for Writ of Habeas Corpus, which further details due process
violations of the August 12 hearing. My attorney and I will also provide additional
important information regarding these matters.
Possible Crimes
Government Code 6200 states that alteration of court recordby a public officer is a felony:
Every officer having the custody of any record, map, or book, or of any paper or
proceeding of any court, filed or deposited in any public office, or placed in his or her
hands for any purpose, is punishable by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code for two, three, or four years if, as to the whole or any
part of the record, map, book, paper, or proceeding, the officer willfully does or
permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.
Penal Code 470(c) states that alteration of a court judgment constitutes forgery:
(c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any
record of any will, codicil, conveyance, or other instrument, the record of which is by
law evidence, or any record of any judgment of a court or the return of any officer to
any process of any court, is guilty of forgery.
Because Judge Mills and Clerk Bogdan appear to have conspired to alter the order, Penal
Code 182(a)(1) and (5) may also apply:
(a) If two or more person conspire:
(1) To commit any crime.

(5) To commit any act injurious to the public health, to public morals, or to
pervert or obstruct justice, or the due administration of the laws
Conclusion
It is clear that Judge Mills, with and through his Clerk, Lori Bogdan, illegally and
maliciously altered a filed sentencing judgment in an attempt to double the amount of time
that I would spend in jail. This is a black and white case of alteration of a court record by
public officials.
Illegal incarceration is the most serious of offenses. The record supports that Judge Mills
knew revoking good time credits was illegal, which would indicate that he acted
maliciously, and he operated under color of law as a public officer, both aggravating factors.
Likewise, Ms. Bogdan would appear to have commited the forgery while acting as a public
officer.

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

I have provided copies of this complaint and additional information to other agencies,
organizations, and officials, some of whom are awaiting a response from your office. I hope
this matter will be dealt with appropriately.
Respectfully submitted,

Joseph Sweeney
cc: Steve Moawad, Senior Deputy District Attorney, Government Corruption Division (via
Hand-Delivery and Certified Mail)




Exhibit A

FL415
AITORNEY OR PARTY WITHOUT AlTORNEY (name, state bar number, and sddiass) or

FOR COURT USc ONLY

GOVERNMENTAL AGENCY (pur.suantto FamOyGade, '17400, 17404):

Michelene Insalaco
161711
Sucherman Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TEl.EPHONENO.(Op!lona.I): (415).357-5050
FAXNO.(Opl/ona/}: (415) 357-50!>1 .
E-MAILAD0Ress(op11onaJJ:
mr@sucherman-insalaco.com
ATTORNEYFOR(NsmeJ:
Keri Evilsizor
.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

AUG 16 2016

751 Pine Street


MAILING ADDRESS: P. 0. Box 911
crrY AND zip cooe: Martinez, CA 94553
STREETAooRess:

BRANCH NAME:

RESPONDENTIDEFENDANT:loseph

James Sweeney

OTHER PARENT:

FINDINGS AND ORDER REGARDING CONTE_MPT


Famil Law
1.

.CASE NUMBER:

013-01648

This.matter proceeded as follows: CJ Uncontested


D By stipuiation
W Contested
Judicial officer: Hon. Edward..G...Mills
a. Date:. August 12, 2016
Dept.: . 29
W Attorney present (name) : ' Michelene Insalaco
b. W Petitioner/Plaintiff present
W Attorney present (name): James Morrison
c. W Respondent/Defendant present
d. CJ Other parent present
CJ Attom~y presen! (npmf!},: ,; ~.~
~
. "
. .
- . e. . Goverrymental ag_
ency by (name):
f. .c:J.'dtherappearances (speclfY):
..
.
.
g: Orfthe' bfcier to Show Cause and Affidavit for Contempt(ioi-m Fl....41
Filed by Keri Evilsizor
on (date) : .December 14, 2015
;

- -. .

2.
3.

The "Citee for purposes.of this order is


Ot.her (specify) :

CJ

Petttioner/.Plaintiff -
" . -.

W .Re$pt:mdent/Defendant

,, _

a.. Citee has been_ advised .ofrlghts to:


(1) W counsel ... :. .. : .:...~> . - '-' :t. . ._. ..
(2) Ill appointed counsel
'
(3) W continuance to obtain counsel
(4) W a hearing/trial (to cross-examine, call, and compel the attendance of
witnesses)
(5) IXI privilege against self-incrimination
(6)
other (speclfY):

b.

Cl

, .. ' " " ' ...

W requested
!XI requested
W requested
W requested
CJ
Q

requested
requested

D
D

CJ
CJ

waived right
waived right
waived right
waived right

W
CJ

waived right
waived right

Written advisement and waiver of rights attached.

THE COURT FINDS:


4. W Citee knowingly, intelligently and voluntarily waived rights as set forth in item 3.

5.

6.

c.

W
W
W

There are valid orders of the court.


Citee had knowledge of the orders.
Citee violated the orders by (specffY):

d.
e.
f.

CJ
CJ
Cl

Citee has freely and voluntarily admitted to the defaults/violations specified in item 6.
There is a factual basis for the plea entered.
Other (specify):
' . ~

a.
b.

See attachment.

Citee is guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause imd
Affids..vitforcontempt(j{)rm FL-410l (s.P.eclfY): Counts 1, 2, 3, 4 and 5. (See exhibit D Of OSC filed 12/14/15

'hcla.~ o-\-

Fonn Approved for OPlional Use


Judicial Council of Ca!Jtornla
FL-415 [Rev. July 1, 2003)

tQi Martillllam~

~ fsSOOJAl fUl!Mf"

for enumerated counts of violations.)'


lQ)o:t

FINDINGS AND ORDER REGARDING CONTEMPT


(Family LawDo~estic Violence PreventionUniform Parentage-Governmental)
8

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

Paget of3
Farnlly Code, 17400, 17402, 17404
CCP, 1209, 121e
www.coutlilfo.ca.gov

CJBNS.ORG

'

PETmONER/PLAINTIFF:

~ESPONDENT1oeFENDANT:

l\en cViJSIZOr
.
Joseph James Sweeney

CASE NUMBER;

013-01648

OTHER PARENT:

a.

7.

Citee is not guilty of contempt of c~urt for thefollowing C:oums (defaults/violations) alleged

AffidavitforContempt(form FL-410) (specify):


b.

8.

CJ

9.
1o.

CJ

Citee waived time for sentencing.


Citee waived time for trial.
Citee failed to appear as ordered.
Other (sp~cify) .:

11.

in the O;der to Show Cause 8nd

Counts 6, 7,.8, 9, 10 and 11. (See exhibit D of DSC .


filed 12/14/1~ for enumerated counts of violations.)

Cltee has a previous finding of contempt (spe:cify):

, . .
THE COURT ORDERS
12. a.
That the following counts alleged In the Order to Show Cause and Affidavit tor Contempt(form FL-41 O) (specify):
~

CJ

13.

Cl

are dismissed
with prejudice
CJ without prejudice.
.
.
That the request to dismiss. the following counts alleged in the Order to Show Cause and Affidavit tor Contempt{form
FL-410) (specify):
i~ denied.

b.

Citee must perform


hours of community service for counts (specify):
a.
To commence on (date):
to be completed by (date) :

........,_,~"""' "" "--- .

Citee must report to (specify):

-- ""''"'"'" "

on (date):

at (time):

CJ Citee must pay an administrative fee i:::J of $


-r~~O~(BG""') c::J as determined by the community service agency
_
W Citee must serve ~
~ ;, In the county jail for counts (specify): 1, 2, 3, 4 and 5.- 5~ -2Ach Cou,t\.
b.

14.

W To commence on (date):

on (date) :

15.

-'& rU\(J.) ~o be completed by (date):

a.
b.
16. a.
b.

C:.O t\.~C.U.hu..Q...

at (time) :

"

W Citeemustpay: Co..t2.A-Co&.\:s. ~ ~ ~Oi,30.C::O {FJ~


.

17.

8 16/16

Citee must report to (specify) :

attorney fees in the total amount of$ \ q

,o96 00 {~) payable to (specify name):

Sucherman. Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
[Dfines in the total amount of$
5,000 P~o.bltc!. ~ .0-L4-\.7

Cl The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.

CJ Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
CJ Execution of sentence tor CJ
hours of community service
D
hours in county jail

will be suspended for a period of


and citee Is placed on court probation on condition that citee
comply with all terms and conditions of this order, and
a.
Comply with current support order.
b.
Pay at least $
per month on current support order, payable to (specify name):
commencing (date) :
c.
Pay at least $
per month on arrears commencing (date):
d.
Serve any remaining hours not suspended as specified in items 13 and 14.

CJ

CJ
CJ
CJ

18.

CJ Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
D Local Child Support Agency CJ court

0 other (specify):
a.
b.

Records of efforts to gain employment must include the name, address, and telephone numbers of Individuals a_n d
firms contacted regarding employment,, the dates of such contact and the anticipated results.
Records of all actual employment must in9h.~e the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.

...
"

Fl-415 [Rev. July 1, 2003]


fQ)llfoninDaW

le!J BSENl!At FliRMS"'

FINDINGS AND ORDER REGARDiNG C0"4tEMPT. .


(Family Law-Domestic Violence Prevention- .. .
Uniform Parentage--Governmental)

. i
.~

. f'

Page2 af3

.'---'

. . PETITIONER/PLAINTIFF:
jREsPoNoENTtoEFENDANT:

l{en Evilsizor

CASE NUMBER:

013-01648

Joseph James Sweeney

OTHER PARENT:

19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.

20. Citee must provide written notification to the superior court clerk of any change in residence and to
the local child support agency
th'e other party
of any change of residence, Income, or employment within 1o days of the change.

21.

22.

Cl

D Awage and earnings assignment will issue.


D This matter is continued to (date) :

at (speafy time):
in court department (specify):
room (specify) :
of this court for
compliance review. Citee is ordered to personally appear In court on that date ar_d time.

Cl further hearing

WARNING: Failure to appaar may rMult in i~~uanea of a bMeh warrant for eitaa'~ arr~~
23.

A Warrant of Attachmentwlll issue for citee's arrest Bail is set in the sum of: $
Execution of the Warrant of Attachmentis stayed until (date) :

at (specify court name):


24.

Other (specify):
.,, . ' ( ..

~ .;.

25. Number of pages attached:

l.
Date:

Approved as conforming to court order and findings:


Date:
(JUDICIAL OFFICER OF lliE SUPERIOR COURT)

CJ

Signature follows last attachment .

The cltee agrees to the above terms:


Date:

(SIGNATURE OF CITEE)

FL-415 [Rev. July 1, 200:3)

~BSNmi"roeMs

RNDINGS AND ORDER REGARDING CONTE.MPT


(Family Law~Domestic Violence Prevention
Uniform Parentage-Governmental)

10

Page3of3

The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order issued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court.''

In September of 2015 Mr. Sweeney created or publicized a web~ite 'entitled


"DivorcingtheEvilsizors.com" in which he described how it cmne to be that he gained access to
Ms. Evilsizor' s phone and read and downloaded her text messages, bank records, and other
materials that are covered by the restraining order. In the website Mr. Sweeney :further describes
in great detail much of the information he found.

Mr. Sweeney admitted in prior sworn.testimony and at trial that he is the owner or only
partner of the LLC that owns the website at issue; that he created and posted the content on the
website; and that he had knowledge of the restraining order (and in fact he represented himself ll;t
the appeal of the order and his petition for review of the appellate comt opinion made to the
California Supreme Court).
It is clear beyond any reasonable doubt that the information laid out in Counts. 1-5 of the
. Order to.Show Cause did originate from M.s. Evilsizor's phone~ and computers. This is clear
from the website itself, where Mr. Sweeney, in his own words, admits this information originated
from the phone (see Exhibit B to the OSC and especially the sections cited in Exhibit D and read
into the record at trial). Ms. Evilsizor's testimony also supports this finding.

Mr. Sweeney asserts that because the material at iSS1Ue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor's phones and
computers, for instance when Ms. Evils~r filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety of reasons, as laid out in the Court's oral decision as stated on the record..

Mr. Sweeney further argues thadh~ restraining order is void or unconstitutional.


However, the appellate court has heard his appeal and affirmed the .order.

11

-...,

-.

The information published in relation to Counts 1-5 was without doubt eXtremely
personal and sensitive in nature, a~.d very clearly cove:r:ed by the restraining order:
The information published in each of Counts 1-5 is of a different nature, and each count
lays out a separate and specific violation of the restraining order.
The evidence shows, beyond a reasonable doubt, that a lawful order was made; Mr.
Sweeney had knowledge of the order; Mr. Sweeney had the ability to comply
with. the order; and .
.
:Mr. Sweeney willfully, and indeed maliciously, disobeyed the order.

In the 20 months that this Court has been hearing family law contempt OSCs, during
which it has heard more than 100 such cases, the Court has never incarcerated a citee, until this
case.

Mr. Sweeney's violations of the family court's order are so blatant, and so clearly

malicious and for pmposes of haia.ssing, humiliating, and embarrassing Ms.-.Evilsizor, that there
must be accountability to the full extent permitted by law.

12




Exhibit B

13

. .,

._,

'~

. '

0
co'i~TRA COSTA COUN- y
,.: ;. fi.:,-~-

<::

~-

DETENTION FACILITY
(X) INMATE REQUEST FOR INFORMATION

) MEDICAL REQUEST

------.
.:S....JL<!'"4" ~/

From: -.:Jc -xpl.,

I
i

Date:___!_;
Check One:
Request0

I l,

11

/IC>

J , J.q~-I l e):... ..,....;)

<'c...,....,;,\-- ~.'t'-.

( ) Grievance

t: ~ i e ~

( ) Appeal

( ) Other

:r i.,,-.Ji I\ ~ I' (' c'~' 'lhl.'\'"'i it....... .


.:'.j6"'J t,...__._ r.:..~.Jit~, !1
r/~,,.,~
I ..(:

'

fl'Jo/~.

."!G

-"! - -Z.Lj

Housing Assjgnment:

()() Request

To

Bkg# c:c..1..~ :r.. K "1 s7


(DOB)

f (.

A...J ; C. -\-~/.;. 1~ M,'t~ t'~

..~

..

~ .- . .

~ ..

Date

~ec'd ~I

V ."0\

f-l&,\_,

C?_cc./\_-Q___..J

q; //.,,

<h.

\t:,C, ?\c\ q

1 , .:}.

By: \_ i""<\ e

\.Jl\..D

~I)

{\D+-

C1..-

!\ l

Yellow: Reply to Inmate

Ci-J.Pf\ .r .v>. D
&

C\C>ce\ -l\. V\IU.....u Date:

Pink: Kept by Inmate


DET 024:.fRM 1/2/91
. - --..:.~ ...... ~-
:

Rec'd By:

lA.JuL\L --\( l~1 _)

;{'-'1 I

I LP

White: To Booking

- ..

14

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG




Exhibit C

15

MORRISON LAW FIRM


156 EAST THIRD STREET
PITISBURG, CALIFORNIA 94565
(925) 432-4731
FAX: (925) 432-4730
jmorrison@morrisonlawfirm.comcastbiz.net
DANA CLOUD MORRISON

JAMES D. MORRISON

August 25, 2016

SENT VIA FACSIMILE


West County Detention Center
Attention: Mary
Civil Clerical Supervisor
Facsimile No. (510) 262-4298
Re:

JOSEPH SWEENEY '

Dear Mary:
Enclosed is a copy of the Court's Order. Mr. Sweeney received 5 days for each
violation for a total of 25 days. Nowhere do I see any provisions that PC 4019 does not
apply. In fact, the Judge reluctantly stated that Mr. Sweeney would be getting half-time.
Penal Code 4019(a)(3) states that Mr. Sweeney is entitled to 4019 credits
(attached). Please correct immediately and contact me. If the Sheriff does not agree,
please contact me immediately so I may take the next step.
Very truly yours,

~\

't
If,!

C21 '

~.

\HI

JameS,'D. Morrin .
;

JDM:dk
Encls.

I
\j

16

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

. i

FL-415
. FOlf COURT USE ONLY

ATTORNEY OR PARTY WITHOUT ATTORNEY (nams, slats bar number, and addifis) or
GOVERNMENTAL AGENCY (putsuant to FBITIHy Code, "17400, 17404):

Michelene Insalaco

161711
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
_
TEt.EPHONENO.(Opllona/): (415) 357-5050
FAXNO.(OptlDnBI}; (415) 35750~1
E-MA1LADoREssrop11onav:
mi@sucherman-insalaco.com
ATTORNEY FOR (NsmeJ:
Keri Evilsizor

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

AUG 1 6 2016

751 Pine Street


MAIUNGADDRess: P.O. Box 911
c1TY ANO zip cooe: Martinez, CA 94553
sTREETAooRess:

BRANCH NAME:

PETITIONER/PLAINTIFF:
RESPONDENTIDEFENDANT:loseph James

Sweeney

OTHER PARENT:
FINDINGS AND ORDER REGARDING CONTE_MPT

CASE NUMBER:

013-01648

Famil Law

i::J

fXI
fXI
r:::J

W
W
CJ

: "'

This matter proceeded as follows:


Uncontested
By stipulation
Contested

a. Date;. .August 12, 2016


Dept.: _ 29
Judicial officer: Hon. Edwar<f.-G.--Mills
b.
Petltioner!Plaintiff present
Attorney present (name): Michelene Insalaco
c.
Respondent/Defendant present
Attorney present (name) : James Morrison
d.
Other parent present
Attorney present (n,ame): . ~
~ - . ', .le
..
,..r .[.
f~
e. Govel'T)mental llg~ncy by (name):
' -. . f. .
'O ther ap?earances (specify) :
_
~: Orfthe' b'rder to Show Cause and Affidavit tor Contempt(iorm 'FL416f
Filed by Keri Evilsizor
on (aate): pecember 14, 2015
1.

f' -

2.

The ucitee" for purposes "of this order is- , ..


Other (specify) :

CJ
3.

a. . Cltee has been advised of rights to:


(1)
counsel.";. : . : . :..<>

lXI

b.

' :J

Petltioner/PJaintiff
, , . ..

: J..

IXI

(5)
(6)

IXI
CJ

CJ

Written advisement and waiver of rights attached.

.J_

- -.

..

:~

(2)
.(3)
(4)

IX]

ll] .Respc;mdent/Defendant.

appointed counsel
'
continuance to obtain counsel
a hearing/trial (to cross-examine, call, and compel the attendance of
witnesses)
privilege against self-incrimination
other (specify) :

IXI

W
W

requested
requested
requested
requested

0
i:J
r:::J
0

waived right
waived right waived right
waived right

requested
requested

IXI

waived right
waived right

r:::J

THE COURT FINDS:


4. IX] Citee knowingly, intelligently and voluntarily waived rights as set forth in item 3.
5.

a.
b.
c.
d.
e.
f.

6.

W
W
IX]

0
D

There are valid orders of the court.


Citee had knowledge of the orders.
Citee violated the orders by (specify):

.See attachment.

Citee has freely and voluntarily admitted to the defaults/violations specified In item 6.
There is a factual basis for the plea entered.
Other (specify}:
' .Ji ~

Citee Is guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause "and

Affida.vit{:!_r_~~n~mpt~rm FL-410) ($.f!ecify):

V,o\a.~~ o-\-

Fonn Apprcved for Optional Use


Judicial Council of California
. FL-415!Rev. July 1, 2003]
~-Dean~

~ BmffiAL fnRMf"

Counts 1, 2, 3, 4 and 5. (See exhibit D of OSC filed 12/14/15

for enumerated counts of violations.)"

~a:\

FINDINGS AND ORDER REGARDING CONTEMPT


. Ience p"revent"ion
(Fam II y Law-D0!119Sti c V10

Uniform Parentage-Governmental)
17

.-

Page 1 of 3

Family Code, moo, 11402, 174{]4


CCP, 1209, 1218
www.courtinfo.ca.gov

'.

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

'
PETITIONER/PLAINTIFF: Ken cVITSIZOr
jRESPONDENT/DEFENDANT: Joseph James
OTHER PARENT:

7.

a.

013-01648

1XJ Citee is not guilty of contempt of c~urt for thefollowing coun~s (defaults/violations) alleged in the oi~e~ to Show Cause ind.

Counts 6, 7,.8, 9, 10 and 11. (See exhtbtt D of osc


filed 12/14/15 for enumerated counts of violat.ions.)

Citee has a previous ffnding of contempt (sp~cify):

b.

i:::J

Citee waived time for sentencing.

W Citee waived time for trial.


D Citee failed to appear as ordered.
i:::J Other (sp~cify) .:

..

THE COURT ORDERS


12. a. i:::J That the following counts alleged in the Order to Show Cause and Affidavit for Contempt(form FL-410) (specify) :
b.
13.

are dismissed
0 with prejudice
0 without prejudice.
That the request to dismiss. the following counts alleged in ~he Order to Show Cause and Affidavit for Contempt{form
FL-410) (specify):
i~ denied.

Citee must perform


hours of community service for counts (specify):
a. 0 To commence on (date) :
to be completed by (date) :
... ., ""'""<> ..,....._ . Citee must report to (specify):
..., ..... ,,.,.~..,,,"" . ,.
on (date):
at (time):
b.
Citee must pay an administrative fee
of$

14.

Citee must report to (specify) :


on (date) :

at (time) :

".

W Citeemustpay: C<:x..\.2.A-eos_\s ~ ~ &ct30.C:C {FJ~

16. a.
b.

a.

w attorney fees in 'the total amount of$ \ q oao .00 (.-) payable to (specify name):

b.

W fines in the total amount of$

0
0

The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.

17.

0
D. as determined by the community service agency

W Citee must serve ~


::.5 f."in the county jail for counts (specify): 1, 2, 3, 4 and 5.- 5~ "2.A.ch Cout\
W To commence on {date): 8 16/16 +6r\-hu.:>t.lJNo be completed by (date):
C:Of\.~C.U..ttu ..J2...

.
15.

-rc:?~O~ ( llG II'\.)

Sucherman. Insalaco LLP, 101 Mission StreSlt, Suite 1640, San Francisco, CA 94105
5,000 ~~o.'olra. ~ ~ -L~ -\.7

D
hours in county jail
hours of community service
will be suspended for a period of
and citee is placed on court probation on condition that citee
comply with all terms and conditions of this order, and
a. D Comply with current support order.
Pay at least$
b.
per month on current support order, payable to (specify name):
commencing (date) :
c. Cl Pay at least $
per mpnth on arrears commencing (date) :
d.
SeNe any remaining hours not suspended as specified in items 13 and 14.

CJ Execution of sentence for

CJ

18.

Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
Local Child Support Agency
court
D other (specify) :

a. Records of efforts to gain employment must include the name, address, and telephone numbers of individuals a_nd
firms contacted regarding employment, the dates of such c0ntact and the anticipated results.
b. Records of all actual employment must ingl~e the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.

..._: ...~'. . j.
FL-415 [Rev. July 1, 2003]

(Q) ManinDmu
~ EsSEHilAi FtiRMS"'

FINDINGS AND ORDER REGARDING CO~IEMPT ..


(Family Law-Domestic Violence Prev~ntion- .
Uniform Parentage-Governmental)

18

fl.":}

"' .

.';

'

'

>

CASE NUMBER;

Sweeney

AffidavitforContempt(form FL-410) (specify):

8.
9.
1O.
11.

:-

. ,,
Page2 of3

'----"'.

PETmoNERIPLAINTIFF:

~esPoNoENTtoEFENDANT:

Ken Evifs1zor
Joseph James Sweeney

CASE NUMBER:

013-01648

OTHER PARENT:

19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.

20. Citee must provide written notification to the superior court clerk of any change in residence and to
D the local child support agency D the other party
of any change of residence, income, or employment within 1O days of tne change.

D
D

21.

22.

A wage and earnings assignment will issue.


This matter is continued to (date) :
at (spedfy time):
In court department (specify):
room (specify):
of this court for
0 compliance review. Citee is ordered to personally appear In court on that date ar.d time.
WARNING: Failure to appear may result in issuance of a bench warran~ for citee's arr~si.

23.

D
CJ

A Wanant of Attachmentwill issue for citee's arrest Bail is set In the sum of: $
Execution of the Warrant of Attachment is stayed until {date):
at (specify court name):

24.

CJ

Other (specify):
'

further hearing

......... .

25. Number of pages attached:


Date:

CJ

Approved as conforming to court order and findings:


Date:
(JUDICIAL OFFICER OF THE SUPERIOR COUAl)

Signature follows last attachment

The cltee agrees to the above terms:


Date:

(SIGNATURE OF CITEE)

FL--415 [Rev. JUiy 1, 2003]


~ M12rtinDconS

~ fmNTIAJ. FORMS"'

FINDINGS AND ORDER REGARDING CONTE.MPT


(Family Law-Domestic Violence PreventionUniform Parentage-Governmental)

19

Pege3of3

..

The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order is~ued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court."

In September of2015 Mr. Sweeney created or publicized a web~ite 'entitled


"DivorcingtheEvilsizors.com" in which he described how it came to be that he gained access to
Ms. Evilsizor' s phone and read and downloaded her text messages, bank records, and other
materials that are covered by the restraining order. In the website Mr. Sweeney further describes

in great detail much of the information he found.


Mr. Sweeney admitted in prior sworn.testimony and at trial that he is the owner -or only
partner of the LLC that owns the website at issue; that he created and posted the content on the
order (and in fact
he represented himself iI,1.
website; and that he had knowledge of the restraining
.
.
the appeal of the order and his petition for review of the appellate court opinion made to the
California Supreme Court).
It is clear beyond any reasonable doubt that the information laid out in Counts_1-5 of the
. Order to .Show Cause did originate from Ms. Evilsizor's phone~ and computers. This is clear
from the website itself, where Mr. Sweeney, in his own words, ~ts this information originated
from the phone (se~ Exhibit B to the OSC and especially the sections cited in Exhibit D and read
into the record at trial). Ms. Evilsizor's testimony also supports this finding.

Mr. Sweeney asserts that because the material at is~ue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor' s phones and
computers, for instance when Ms. Evils~r filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety of reasons, as laid out i,n the Court's oral decision as stated on the record.
Mr. Sweeney further argues thatih~ restraining order is void or unconstitutional.
However, the appellate court has heard his appeal and affirmed the order.

1
20

The information published in relation to Counts 1-5 was without doubt eXtremely
personal and sensitive in nature, all.d very clearly cove~ed by the restraining order:
The information published in each of Counts 1-5 is

of a different nature, and each count

lays out a separate and specific violation of the restraining order.


The evidence shows, beyond a reasonable doubt, that a lawful order was made; M r.
Sweeney bad knowledge of the order; Mr. Sweeney bad the ability to c~mply with the order; and .

Mr. Sweeney willfully, and indeed maliciously, disobeyed the order.


In the 20 months that this Court has been hearing. family law contempt OSCs, during
which it has heard more than 100 such cases, the Court has never incarcerated a citee, until this
case. Mr. Sweeney's violations of the family court's order are so blatant, and so clearly
malicious and for pmposes of harassing, humiliating, and embarrassing Ms.--Evilsizor, that there
must be accountability to the full extent permitted by law.

21

Page 1of11

4019. Application of section to certain prisoners; w:irkperformance and good behal.ior tirre credit I 11\/estlaw

WEST LAW
NOTES OF DECISIONS (248)
Validity

West's Annotated California Codes

Equal protection

PenalC.Ode(Refs &Annas)
T'\

~ .....

r'\CT-...

Due process

--!------.i.. __ .J ....1__

T"\.- -.LL n -.- -1~ . / n

... C'- " - " - -

- -'

4019. Application of section to certain prisoners; work performance and good behavior time credit
West's Annotated Galifornia Codes

Penal Code

B'f ective: January 1, 2015

(Approx. 3pages)

Construction and application


Construction with federal law
Construction with other laws

Chapter 1. County Jails (Refs &Annos)

Relroactiw application
Preemption
Legislative intent

Proposed Legislation

Purpose
Actual cus tody
Presentence

Effective:January1,2015

custody

Nonpenal institutions
Drug treatment programs

West's Ann.Cal.Penal Code 4019

Parole
Probation

4019. Application of section to certain prisoners; work

performance and good behavior time credit


' ":r:.;:.,;,,.:;.~-i.."'"-'' ,.__ ,

-- ""~ ' ~-

..

- - --- -- -Currentness

Electronic monitoring
Weekend sentencing
Private work program

. ., - -~ ; .., ,'!'. ; :"t.. -_,

Discretion of court
Mminlstrative determination

- -- - -- --- ------- ------

-- - -- --

Presentence conduct credit

Computation of credit

(a) The provisions of this section shall apply in all of the following cases:
(1) When a prisoner is confined in or committed to a county jail, industrial farm, or road
camp, or any city jail, irdustrial farm, or road camp, including all days of custody from the
date of arrest to the date on which the serving of the sentence commences, urder a
judgment of imprisorment, or a fine and imprisonment until the fine is paid in a criminal
action or proceeding.

Forfeiture of credit
Limitation of custody credits
Ban on credits
Correction of sentence
Youthful offenders
Waiver of credits
Counsel , ineffectiw assistance of
Jneffectiw ass istance of couns el
Abstract of judgment
Judgment, abstract of

(2) When a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, industrial farm, or road camp as a condition of probation after
suspension of imposition of a sentence or suspension of execution of sentence, in a

Evidence , sufficiency of
Sufficiency of evidence
Remand

criminal action or proceeding.


(3) Wien a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, irdustrial farm, or road camp for a definite period of time for
contempt pursuant to a proceeding, other than a climinal action or proceeding.
(4) Wien a plisoner is confined in a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp following arrest and prior to the imposition of sentence
for a felony conviction.
(5) V'vt!en a prisoner is confined in a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp as part of custodial sanction imposed following a
violation of postrelease community supervision or parole.
(6) When a prisoner is confined in a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp as a result of a sentence imposed pursuant to
subdivision (h) of Section 1170.
(7) VVhen a prisoner participates in a program pursuant to Section 1203.016 or

22

https://1.ne.xt.v.estlaw.com'Documenl/N23356981486411 E4AB45958613EBA383/View'FullText.him ?nalAg alionPath=Searcho/o2Fl.G%2Fsearch%2F...

August 25, 2016




Exhibit D

23

r".VV..:1fUU"t

0812512016 10:45
0811712016 16:30

P.0021003

p, 2

No. 0989

Aug, 17. 20H 9: 17PM

,'

PitmONERIPWNTlf'l't

.er

Zor

'

'C*N~

GSPONOENTIDEFiNOANr: jo.seph James Swe~ney


Q1HlilR PARSNT:

.. .

013-0.1648

Cl Oltff waiVed itme for 8ortteridn;.

s.

9. (XI Citee waived time fartrkll.


10.

11.

l:l at. fail.d tg BPPW as ol'QeM,


c:J

Othar~;

...

THE COU.lrr ORl>!:RS . .


.
12. a. Cl 'l'heUk 'r:ilfQWJng GOUn1S alld In~ Otrlet~ S!Jrm cause Biid AJ6r.Javit for eontempr(fonn Fl-4-W) (~ !
.
. , .

Q ~ ~udlo : .

. are 011ml!itd

b.

FL.~10) (IJPff:lr/):

1a.

t:J wtthot!l ~~1udica~ .

..

. " .

to

a. l:;J To cumrnanc:e on (dalf) i .


. ; : ..... be~~ .E1Y (dlt9>.:
Cllet f!lut:tfeport.to ~)! . . . : :: . . '. . " . "
on (date):
. , . :. . . .
r-a . ... ...at~''

lade~

. ho~~ OfcommUrufy:nfor'IXl~'(f'.Wal&J:

CJ ciree mustperfMn

b. i:J Cl\te ril\llt pay"in ldrnlt)I~ fq . ._. :~~ $

14.

.. .

c:J Thist~ ~=~mil~-fvllowi~go0unm .auegec1ItttiaOr*toSflowC!u.#andAb~fo/CMtempt(fOnn

-t..

; .

,,., . ' .;_ ..... -.-;,.. ,.,; .., ...

~-

,. : ~. . . . : ': o~~~b.ytne :~iriunft.te'MQiJ!Nftey-.

~ ,\()
".' (~'!-\.}: " :. .,. .... .'.'.''._ 1 "... ~ A d5 . ~~":Cd ' ' ~~-,
ID Cft8e ml31~rw ~
: .:... ... ~ inilt&~.:~1.fO!'~Ullf.t(~). ' ., ,, w.; ""'an "':~~ ~., : - ~ i~ -,-,,~,-~<:.-:~;.,::;,,""~:':'(
ag ,.o_O<imrne1:10e_on (dJ.:. . 16/1~
eltlia m~ raperHc (sp:Hy}: .. .
0

: ,-~:r"'~~be~ompl'e:tectbyfdareJ~

. :.

.. : ..

."

:.

fJ~, . : '., ~. -'1~ i< \ :1


~-~~,~.~~~

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. a. aa:aui:im~-nt!ietotil~moiiitd,ff

\q.c;:eo ~exp_ {~)MiabltO (~namoi~ .


'
Sucherman. Ih$alace ._ LIJ).~ .1~1 Mission:~~. ~~1~ _~$~,, sanFranc1sm, CA 94105

b. Wnn~ .ioihe~~m1;1un1~:~ :

18. ...
b,

17.

5;.00Q P~o,'01& ~~-l.4'.""'\.7


Th~pt pnJCHdlngt ert tUIPtT'l~~l\.eondlU()n. lh&t ~:plywbh ~ 1\1\d OOfld~ Qf'ttlts. orUr--.
Cl 1mpm~ol'.\. cf -'.l'lntence 1s suspended ari cor,d~ioit th~ ctl!rlPly 'Mt.Ii a!'l ferms.~d col"ldltlOl'lt r1f th! Qf$r~

Cl ~ot.~tOt .Cl . . '. ho11rt,.cif~~-~ f :l.


. . J:Kiur1ln,~myjlil.
YA!l bll euarJifldod ~rpel'lod cf .":

'.
. Md.dtea la"ptl(Cjid '1ccuttp.robatfon:.au~ndlfion that ollt&
campry .With .a11 11i!nilnn~ !=on~ lill''tl'iis ordr. ~nci .-. ...

a. CJeo.mplY.Y.o'fth ~UP.II~~-~
b.

c:l Pay~ least $.

" ,. . . .' .. .

,. . . ' : per .month o!l ci;.ir~nt W?Pgrt ~nisr. pf!~~ to(sp.i;lfy ~;:

.. . . .

c. Cl P!lYatleut$

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.
" '.

: . . . . .... ;:.- ". :.: QQmfTjtto1ni(dDJ~

.. pef'rni>n;tn.on~~,. ~~g(dltt}':

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c:J ~ mUst 1itJc.1iui;m.tra;m:~1~~nt "'(s~~-~-:,~n:~~.,.~p~ otwtiton must b9 fOlwlrd~ b;thv ~ da'f
d;

11.

:a

at~ mollltl'.ee l'Ol-'til ~a: ....


~-Ctilfff"~Pf.IO~.Ageney. : ~CJ :t:aut'f . "."
.
.
. .. . .
'c:Jortier(Spea'M: .' .' . ..": . , '..
.. ..\ . . .-:: '.: . , .
a. Reoordaof'atforta tc gllln mploymiint ntl.lft.ln0lud6 thtname, add and tll;r:>hGfia .ttllr'ntle'11 ot inaM::fuBls ~
firm11 ~ :~ntrng. et'OJ'!"YJ1181'1ti t11ec w. of euch comact_M d lhe ~~-l'UUl\I. . .

b.

>,...:.. .'..

~qani$.of 11;~ aetua~ ~plgymenhnusc 1nc1ude ~11 nsimi .ot1h8:8p,p!~.cJatas, ,ndhoum wo1:~ecf and IJ'l.e ~
and netiamouniti.oflni:omstrom ~h emJi'r. '
: ._. : :
'

, . ....: :> '

l'L-ll'' 11\WV.iuJy 1. ~

(g)BiftW .

F1~DlNG6
.AND
ORDER
ReGAADING
GOl'fteMP'F"

.
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.
. .
. .
. .
. . . '!.
,,,_:......... ..
... (f.a.,..i1y i.aw.oom-.rc..Viol~.~ ~t'IWftr,itir;i.,~- .
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Plriinta~~t;t) .

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24

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Exhibit E

25

MORRISON LAW FIRM


156 EAST THIRD STREET
PITISBURG, CALIFORNIA 94565
(925) 432-4731
FAX: (925) 432-4730
jmorrison@morrisonlawfirrn.comcastbiz.net
DANA CLOUD MORRISON

JAMES D. MORRISON

August 25, 2016


The Honorable Bruce C. Mills
Contra Costa Superior Court
Department 29

Re:

Evilsizor v. Sweeney
Contra Costa Superior Case No. 013-01648

Dear Judge Mills: -


You sentenced Mr. Sweeney on August 16, 2016 to 25 days county jail. I did not
receive the written Findings until August 19, 2016. A copy of those are enclosed.
At sentencing on Friday, August 12, 2016, you made the comment that Mr.
Sweeney would be receiving half-time. In fact, PC 4019(a)(3) specifically states that
half-time credits apply. Evidently, the Order that was served on me is different than the
Order served on the Sheriff; why I don't know. I assume the handwritten comment is
merely an error. Certainly the finding was never made in open court and is contrary to PC
4019(a)(3). I have enclosed a copy of both pages and ask that the Court immediately
correct its decision by deleting the comment, "No good time credits to be given." I ask that
you notify the Sheriff and myself immediately of this change. Thank you.
Very truly yours,

1JI1
1

Ja1 /.

'Merri

cc:

Michelene Insalaco, Esq.


Mary Algandro, Civil Supervisor
Sheriffs Office

26

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

;-

FL-415
FOR COURT USE ONLY

ATTORNEY OR PARTY WITHOUT ATTORNEY (name, state bar number, and addmss} or

GOVERNMENTAL AGENCY {pursuant to FsmDy Code, "17400, 17404):

Michelene Insalaco
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TELEPHONE NO.(Optlonal): ( 415) 357-5050

161711

FAX NO.(Optlonal): (

mi@sucherman-insalaco.com
AnoRNev FOR rrvame;.
Keri Evilsizor

415)

357-50~ 1 .

E-MAILAD0Ressrop11anal):

SUPERIOR COURT OF CALIFORNIA, COUNTY OF


STREETAooRess: 751 Pine Street
MAlLINGAooRess:

AUG 1 6 2016

P.O. Box 911


CA 94553

crTY AND zip cooe: Martinez,

RESPONDENTIDEFENDANTJoseph

James Sweeney

OTHER PARENT:
FINDINGS AND ORDER REGARDING CONTE.MPT

CASE NUMBER:

013-01648

Famil Law

W
W

W
W
0

: ~.

By stipulation
Contested
This matter proceeded as follows: D Uncontested
a. Date;. August 12, 2016
Dept.: _ 29
Judicial officer: Hon. Edward,G.-Mills
Attorney present (name): Michelene Insalaco
b.
Petitioner/Plaintiff present
Attorney present (name): James Morrison
c.
Respondent/Defendant present
Other parent present
d.
D Attom~y
present (nfMT1e): . ~ ..
~
. . ,.a.

,.. . " ~
.
. _ e. . Gove111mental ;liQ_~ncy by (name) :
. . {. 0. 'Odier appearances {specifjr):
..
_
g: Ori'"the' brder to Show Cause and Affidavit tor Contempt(iorm Ft41 O)~ '
Filed by Keri Evilsizor
on (date) : ,December 14, 2015
1.

2.
3.

The "Citee" for purposes of this order is-


D Other (specify):

l.:J

PeiitioAer/Plaintiff
, , . ,

W .Respc:indent/Defendant
'

a.. Citee has been advised of rights to:


(1)
coun~I - "';. : : - .:. -.~> - '.J u ._. ..
(2)
appointed counsel
'
(3)
continuance to obtain counsel
a hearing/trial (to cross-examine, call, and compel the attendance of
(4)
witnesses)
(5)
privilege against self-incrimination
(6)
other (specifjr) :
b.

"

''~

W
W
I.XI
I.XI

W
W
W
W

requested
requested
requested
requested

W
D

0
D

requested
requested

,.~

'

D
I:]

D
0

waived right
waived right
waived right
waived right
waived right
waived right

Written advisement and waiver of rights attached.

THE COURT FINDS:


4.
Citee knowingly, intelligently and voluntarily waived rights as set forth in item 3.

5.

6.

a.
b.
c.

IXl There are valid orders of the court.

W
W

Citee had knowledge of the orders.


Citee violated the orders by (specify) :

d.
e.
f.

0
D
0

Citee has freely and voluntarily admitted to the defaults/violations specified in item 6.
There is a factual basis for the plea entered.
Other (specify):
' Ji ;f

See attachment.

Citee is guilty of contempt of cou"rt for the following counts (defaults/violations) alleged in the Order to Show Cause imd

Affide..vit{!!_r_~!!...n~mptf){)rm FL-410l ftmecify):

V'cla."TI.OI" ~ oT-

Counts 1, 2, 3, 4 and 5. (See exhibit D of DSC filed 12/14/15

for enumerated counts of violations.)

lC)o=t,
FINDINGS AND ORDER REGARDING CONTEMPT

Fonn Approved for Optional Use


Judicial Couneil or California
FL-415 [Rev. July 1, 2003]

~ MartiJlDi:an~

~ fSSOOIAl FORMS"'

{Family Law-Do!'Jlestic Violence PreventionUniform Parentage-Governmental)


27

Page 1 of3
Family Code, 17400, 17402, 11404

~~~~t~1~1

'
,-;

'

'
PETITIONER/PLAINTIFF:
["-REsPONDENT10EFENDANT:

Ken cVITSIZOr

<

CASE NUMBER:

013-01648

Joseph James Sweeney

OTHER PARENT:

a. [XI

7.

Citee is not guilty of contempt of court for thefollowing coun~s (defaults/violations) alleged in the Or~e~ to Show Cause gind .
AffidavitforContempt(form FL-410) (specify): Counts 6, 7/.8, 9, 10 and 11. (See exhtbtt D of

b.

CJ

8.
9.

D
W

1O.
11 .

Citee waived time for sentencing.


Citee waived time for trial.
Citee failed to appear as ordered.
Other (specify).:

,.

Citee has a previous finding of contempt (specify):

..

.~

osc

filed 12/14 1~ for enumerated counts of violations.)

THE COURT ORDERS


12. a. CJ That the following counts alleged in the Order to Show Cau:se and Affidavit forContempt(form FL-410) (specify):

b.

13.

are dismissed
0 with prejudice
D without prejudice.
That the request to dismiss. the following counts alleged in ~he Order to Show Cause and Affidavit tor Contempt{form
FL-410) (specify):
is denied.

Citee must perform


hours of community service for counts (specify):
a. D To commence on (date) :
to be completed by (date) :
.. " ""'"''-""'" _ . ..
Citee must report to (specify):
.... h"'""~ ""'" - ,.
on (date) :
at (time) :
b. D Citee must pay an administrative tee
D of $

L~~O~(BG""')

14.

CJ.as determined by the community service agency

W Citee must serve ~


~ ) in the county jail for counts (specify): 1, 2, 3, 4 and 5.- 5~ "'-ch Co\li\_
W To commence on {date): 8 16/16 -'6 r\-hu:> ~o be completed by (date):
C...O 1'.~C.i...l.\1.u~

Citee must report to (specify):


on (date) :

at (time) :

r \

r __I _ i ri. ::z.-. C::C L iJ ~

15. [X) Citee must pay: C~U-C.0.S.~ ~ ~

....,,:>-

a.

IXl attorney fees in "the total amount of$ \ q 066 00 {fl;- Jpayable to (specify name):

b.

W fines in the total amount of$

Sucherman. Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
5,000 P~o.'olc2.. ~ ~ -~ 4.-\.7

D The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
CJ Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.
CJ Execution of sentence for Cl
hours of community service
CJ
hours in county jail

16. a.
b.

17.

will be suspended for a period of


and citee is placed on court probation on condition that citee
comply with all terms and conditions of this order, and
a. CJ Comply with current support order.
b.
Pay at least$
per month on current support order, payable to (specify name):
commencing (date):
c. CJ Pay at least $
per month on arrears commencing (date) :
d.
Serve any remaining hours not suspended as specified in items 13 and 14.

CJ

18.

Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
D Local Child Support Agency
court
D other (specify):
a. Records of efforts to gain employment must include the name, address, and telephone numbers of individuals a_nd
firms contacted regarding employment, the dates of such contact and the anticipated results.
b. Records of all actual employment must ingh.Jlle the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.

CJ

.. .

FL-415 [Rev. July 1, 2003]

(Q) llfaninDraiU
~ EsSENTIAt RIRMf"

. .-

FINDINGS AND ORDER REGARDiNG CONTEMPT- .


(Family Law-Domestic Violence Preventio~- " .
Uniform Parentage-Governmental)

28

. j. 'i. ... ~

.~

"'

..

., .
Page2 af3

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE


.'--"

'--..,/'

PETITIONER/PLAINTIFF:

~esPoNDENTJDEFENDANT:

CJBNS.ORG

Keri Evils1zor
Joseph James Sweeney

CASE NUMBER:

013-01648

OTHER PARENT:

19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.

20. Citee must provide written notification to the superior court clerk of any change in residence and to

the local child support agency


the other party
of any change of residence, income, or employment within 1O days of the change.

21.

Cl A wage and earnings assignment will issue.

22.

This matter is continued to (date):

at (specify.time):
in court department (specify):
room (specify):
of this court for
compliance review. Citee is ordered to personally appear In court on that date aP_d time.
WARNING~ l=ailure to appear may result in issuanes of a bench warran! for citee's arrest.

CJ further hearing

CJ
23.

0
D

A Wanant of Attachmentwlll issue for citee's arrest. Bail is set in the sum
Execution of the Wammt of Attachment is stayed until (date):
at (specify court name) :

24.

Cl

Other (specify):

ot $

' ?(,_),: :

. ~i'' :: .: . . ;, .

25. Number of pages attached:

~
Date:

Approved as conforming to court order and findings:


Date:
(JUDICIAL OFFICER OF THE SUPERIOR COURT)

Signature follows last attachment

CJ

The cltee agrees to the above terms:


Date:

(SIGNATURE OF CITEE)

FL.-415 (Rev. July 1, 200S]

FINDINGS AND ORDER REGARDING CONTE.M PT

(Family Law-Domestic Violence PreventionUniform Parentage-Governmental)

29

Page3 of3

The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order issued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court."

In September of 2015 Mr. Sweeney created or publicized a web~ite entitled


"DivorcingtheEvilsizors.com" in which he described how it came to be that he gained access to
Ms. Evilsizor' s phone and read and downloaded her text messages, bank records, and other
materials that are covered by the restraining order. In the website Mr. Sweeney :further describes
in great detail much of the information he found.

Mr. Sweeney admitted in prior sworn testimony and at trial that he is the owner or only
partner of the LLC that owns the website at issue; that he created and posted the content on the
website; and that he had knowledge of the restraining order (and in fact he represented himself iI;i.
the appeal of the order and his petition for review of the appellate court opinion made to the
California Supreme Court).
It is clear beyond any reasonable doubt that the information laid out in Counts 1-5 of the
. Order to .Show Cause did originate from ~s. Evilsizor's phone~ and computers. This is clear
from the website itself, where Mr. Sweeney, in his own words, ~ts this information originated
.

from the phone (see Exhibit B to the OSC and especially the sections cited in Exhibit D and read
into the record at trial). Ms. Evilsizor's testimony also supports this finding.

Mr. Sweeney asserts that because the material at is~ue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor' s phones and
computers, for instance when Ms. Evils~r filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety of reasons, as laid out j,n the Court's oral decision as stated on the record.

Mr. Sweeney further argues thatth~ restraining order is void or unconstitutional.


However, the appellate court has heard his appeal and affirmed the .order.

30

-.

The information published in r~lation to Counts 1-5 was without doubt eXtremely
personal and sensitive in nature, and very clearly covez:ed by the restraining order:
The information published in each of Counts 1-5 is of a different nature, and each count
lays out a separate and specific violation of the restraining order.
The evidence shows, beyond a reasonable doubt, that a lawful order was made; Mr.
Sweeney had knowledge of the order; Mr. Sweeney had the ability to c~mply with the order; and .

Mr. Sweeney willfully, and indeed maliciously, disobeyed the order. ,


In the 20 months that this Court has been hearing family law contempt OSCs, during
which it has heard more than 100 such cases, the Court has never incarcerated a citee, until this
case. Mr. Sweeney's violations of the family court's order are so blatant, and so clearly
malicious and for pmposes of haiassing, humiliating, and embarrassing Ms.--Evilsizor, that there
must be accountability to the full extent permitted by law.

''

2
31

Page 1 of11

4019. Application of section to certain prisoners: 'M)J'k performance and good beha'.ior tirre credit I Westlaw

WEST LAW

NOTES OF DECISIONS (248)


Validity

West's Annotated California Codes


PenalCode(Refs &Annos)

> .,,

,.,, --'-,...

Equal protection
Due process

,-,..CT----!-------.&. .. - . l ..1..1 __

~--.1..L

n ___

,i..__ rn_.1:_

o_ "' --- .... '\

4019. Application of section to certain prisoners; work performance and good behavior time credit
West's Annotated California Codes

Penal Code

Effective: January 1, 2015 (Approx. 3pages)

Construction and application


Construction with federal law
Construction with olher laws

Chapter 1. Cotmty Jails (Refs &Annos)

Retroactiw application
Preemption
Legislatiw intent

Proposed Legislation

Purpose
Actual custody
Presentence custody

Effective:January1,2015

Nonpenal institutions
Drug treatment programs

West's Ann.Cal.Penal Code 4019

Parole
Probation

4019. Application of section to certain prisoners; work

performance and good behavior time credit


. ... , ...~;:, ~;.':,,.:...,,. ,

Electronic monitoring
Weekend sentencing
Private work program

.. . . . . ,, h ' "

Discretion of court

- - - -- -- - - __ Currentness _ _ __ _._ __ _

Administratiw determination

- - - - --- - - - - -- -Presentence conduct credit

Computation of credit

(a) The provisions of this section shall apply in all of the following cases:
(1) \f\lhen a prisoner is confined in or committed to a county jail, industrial farm, or road
camp, or any city jail, irdustrial farm, or road camp, including all days of custody from the
date of arrest to the date on which the serving of the sentence commences, urder a
judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal
action or proceeding.

Forfeiture of credit
Limitation of custody credits
Ban on credits
Correction of sentence
Youthful offenders
Waiwr of credits
Counsel, ineffectiw assistance of
lneffectiw assistance of counsel
Abstract of judgment
Judgment. abstract of

(2) V\lllen a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, industrial farm, or road camp as a condition of probation after
suspension of imposition of a sentence or suspension of execution of sentence, in a
criminal action or proceeding.

E-.idence, sufficiency of
Sufficiency of e>Adence
Remand

(3) \M1en a prisoner is confined in or committed to the county jail, industrial farm, or road
camp or any city jail, industrial farm, or road camp for a definite period of time for
contempt pursuant to a proceeding, other than a criminal action or proceeding.
(4) V\lllen a prisoner is confined in a cotrlty jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp following arrest and prior to the imposition of sentence
for a felony conviction.
(5) \f\lhen a prisoner is confined in a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp as part of custodial sanction imposed following a
violation of postrelease community supervision or parole.
(6) V\lllen a prisoner is confined in a .county jail, industrial faITTl, or road camp, or a city

jail, industrial farm, or road camp as a result of a sentence imposed pursuant to


subdivision (h) of Section 1170.
(7) Wien a prisoner participates in a program pursuant to Section 1203.016 or

32

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- FmblNGS AND ORDER ReGMCJINQGONt!MFF "

.-. (f.a,,.lty ~~o.'.\ttoi~ ~NVft;rlirJll~.. : ~"' '. .

. . :. .. u""or.m Par8n{9~vfmmtn*) .
. . ..
. . '
.
. . .. . . ~ . ..... : .. : .
:

'

33

: ...::




Exhibit F

34

AU.

'l

t).

11

Lu11\', l)(

'I '" ~~ '


L:)j'
JI"

No. : 01 G P.

- - -- - - 1

2
3

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF CONTRA COSTA

6
7

UNREPORTED ~IThlJTE ORDER


10

:..1
Keri Evilsizer,

l .2

Case No.Dl3-01648

Petitioner
14
VS.

:s

., Joseph SweeneY,i
16

R espondent

17

18

The Court modifies t.he sentence imposed on August 16~ 201 as follows:
20

::n

The Respondent Joseph Sweeney having been ordered to serve 25 days county jail is

entitled to receive good time credits.


22

23

24
25

August 2 5~ 2016

Bruce C. :Mills
JLTIGE OF TIIE SUPERIOR COURT

- 1-

35

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG




Exhibit G

36

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

MR.

MORRISON:

Your

Honor,

option is community service.

statute,

it'll say up

4
5

THE

MR.

another

if you

read the

for each

I'm not going

to give

MORR ISON:

--

or 1 2 0 hours'

community

I'm not going

to give

service.

8
9

believe,

five days

Yeah,

I believe

community service.

6
7

COURT:

to

CJBNS.ORG

THE COURT:

Yeah,

community service in this case.

10

appropriate.

11

in the two

12

give community service.

13

I don't find it

This was the most egregious case I've had

years

I've been doing

MS.

INSALACO:

Sweeney

has acted

this.

Your Honor,

I'm not

until this

going to

point,

14

Mr.

15

Court's

orders.

16

service

incarcerated is required.

17

Court's

discretion

18

the two options.

19

sentence

20

maybe a couple

of days and then the rest would be

21

sorry,

know the right term you used,

22

And so

he's

above the law and the

therefore,

as to

we do
I'll

believe
leave it

some
to the

how to allocate that between

But we request

the maximum combined

in terms of if he was to be incarcerated for

I don't

THE COURT:
get

as if

good

times

Well, keep
credits.

mind,

don't

he's

but the
also

to

24

he's also going to get one day good time for each day

25

that he serves,

26

or

So out

do criminal.

going

23

probably.

You

in

I'm

of 2 5 ,

But

he'll serve 1 2

13?

27

THE BAIL IFF:

28

THE COURT:

Yes.
So the

reality is he'll only serve


86

37

half

of it to begin with.

2
3

MS.

INSALACO:

with the motion about Ms.

THE

COURT:

MS.

INSALACO:

times.

THE COURT:
as

also

did file

a declaration

Evilsizor's fees.

Right.
We've had to

we've drafted the

7
8

We

come back

here five

osc.

How much is the amount

of the fees

of now?

MR.

MORRISON:

10

THE COURT:

11

MS.

12

THE COURT:

13

Is that the

14

MR.

18,000.

Even?

INSALACO:

Let's see.

And does that

MORRISON:

include court costs?

So my office sent me

a memo

just

15

this morning to summarize it, including the time today.

16

And it included all of our costs.

17
18

THE COURT:
fees as

20

is

21

today, my --

23

INSALACO:

just the fees.

22

out costs and

So my hourly
I

misspoke.

rate

can

go

is

I think

4 5 0.

this

Prior to

through the time.

Well, so you're saying

$18,000 is

just the fees?


MS.
hours for

my

26

draft

OSC.

the

THE
associate at

Between

INSALACO:

25

28

I think

I had spent --

THE COURT:

24

27

break

separate items.
MS.

19

Well, we need to

associate and

COURT:

two

Well, you

-- it was about seven


and

a half for m e to

don't charge your

$4 5 0 an hour, right?
87

38




Exhibit H

39

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

SUPERIOR COURT - MARTINEZ


COUNTY OF CONTRA COSTA
DEPARTMENT 29

HEARING DATE: 08/16/16

REPORTER: REBOLLINI
CLERK: S. TIGUE

KERI EVILSIZOR

PLAINTIFF(S)

vs.

CASE NO. MSD13-01648


******* MINUTE ORDER ******

JOSEPH JAMES SWEENEY


DEFENDANT(S)
**********************************************************************

PROCEEDINGS: F/L SPECIAL SET HEARING ON: Sentencing

cause called for hearing before JUDGE BRUCE c. MILLS.


Clerk: L.Bogdan
COURT REPORTER: RICK GALTEN, CSR# 13202
KERI EVILSIZOR Appears with Attorney Staci Lambright for Micelene
Insalaco
JOSEPH JAMES SWEENEY Appears with Attorney Jim Morrison
sentencing is as follows:
$1,000.00 fine for each count. A total of $5,000.00 payable to the
courts Financial Services by February 14, 2017.
Five days county jail for each count each to run consecutively for a
total of 25 days.
i

citee must pay the Petitioners court costs and fee's in the amount of
$930.00, along with Attorney fee's in the sum of $19,080.00. The
total amount owed is $20,010.00 payable to Scherman Insalaco LLP.
citee is remanded to the custody of the sheriff.

Date:

08/16/16

BY
Deputy clerk
40




Exhibit I

41

FL-415
FOR COURT USE ONLY

ATTORNEY OR PARTY WITHOUT ATTORNEY (name, state bar number, and address) or
GOVERNMENTAL AGENCY (pursuantto Family Code, 17400, 17404):

Michelene Insalaco
161711
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TELEPHONENO.(Opffona/): (415) 357-5050
FAXNO .(Optional): (415) 357-5051
E-MA1LAooREss1op/iona1J:
mi@sucherman-insalaco.com
ATTORNEY FOR INameJ:
Keri Evilsizor

: i

i f.'"""'-- .f ~

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

751 Pine Street


P.O. Box 911
c1TY AND z1p cooE: Martinez, CA 94553
srnEETAooREss:

MAILINGAooREss:

BRANCH NAME:

REsPoNDENT10EFENDANT:Joseph James Sweeney


OTHER PARENT:

FINDINGS AND ORDER REGARDING CONTEMPT


Famil Law

1.

g:

3.

013-01648

This matter proceeded as follows:


Uncontested
By stipulation
Contested
a. Date: August 12, 2016
Dept.: 29
Judicial officer: Hon. Edward G. Mills
b. W Petitioner/Plaintiff present
Attorney present (name): Michelene Insalaco
c.
Respondent/Defendant present
W Attorney present (name) : James Morrison
Other parent present
Attorney present (n,ame): .: . ,.
d.
e. Goverrime.ntal .ag~ncy by (name):
f.
'otfu:~r a):?lpearances (specify):
.
On'the"Order to Show Cause and Affidavit for Contempt(torm F=L~41of .,
Filed by Keri Evilsizor
on (date): December 14, 2015

W
D

2.

CASE NUMBER:

' ~

'

D .

The "Citee" for purposes of this order is


Other (specify):

Petitioner/Plaintiff

Re$pondent/Defendant

'

"'.

' '

a. Citee has been advised of rights to:


(1)
counskl : .
' . ~
(2)
appointed counsel
(3)
continuance to obtain counsel
(4)
a hearing/trial (to cross-examine, call, and compel the attendance of
witnesses)
privilege against self-incrimination
(5)
other (specify):
(6)
b.

,. ~

W
W
W
W

W
W
W
W

requested
requested
requested
requested

D
D
D
D

waived
waived
waived
waived

W
D

D
D

requested
requested

waived right
waived right

right
right
right
right

Written advisement and waiver of rights attached.

THE COURT FINDS:


4.
Citee knowingly, intelligently and voluntarily waived rights as set forth in item 3.

5.

6.

a.
b.
c.

W
W
W

There are valid orders of the court.


Citee had knowledge of the orders.
Citee violated the orders by (specify):

d.
e.
t.

Citee has freely and voluntarily admitted to the defaults/violations specified in item 6.
There is a factual basis tor the plea entered.
Other (specify) :

See attachment.

Citee is guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause and
AffidavittorContempt~irm FL-410) (~pecify): Counts 1, 2, 3, 4 and 5. (See exhibit D of OSC filed 12/14/15

V,cla.~

ot-

for enumerated counts of violations.)

l,;)o:\

Page 1 of 3

FINDINGS AND ORDER REGARDING CONTEMPT

(Family Law-Domestic Violence PreventionUniform Parentage-Governmental)

42

Family C ode. 11;"'(g~; ~;~z~ 91 71~

www.cou rrlnfo.c;u.9ov

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

:~'.

PET1T10NERJPLAINTIFF:
esPONDENT/DEFENDANT:
OTHER PARENT:

7.

a.

Ken Evilsizor
Joseph James Sweeney

osc

filed 12/14/15 for enumerated counts of violations.)

9.

0
W

10.
11.

Citee waived time for sentencing.


Citee waived time for trial.
.
Citee failed to appear as ordered.
Other (specify) :

013-01648

Citee is not guilty of contempt of court for the following counts (defaults/violations) alleged in the Order to Show Cause and
AffidavitforContempt(form FL-410) (specify): Counts 6, 7,8, 9, 10 and 11. (See exhibit D of

b.

8.

CASE NUMBER:

Citee has a previous finding of contempt (specify):

THE COURT ORDERS


12. a.
That the following counts alleged in the Order to Show Cause and Affidavit for Contempt(form FL-41 O) (specify):

13.

14.

15.

Citee must perform


hours of community service for counts (specify):
a.
To commence on (date) :
to be completed by (date) :
Citee must report to (specify):
on (date) :
at (time) :
b. D Citee must pay an administrative fee
0 of $

-r ~
0 ~ (BG Ill\)

0 ,

as determined by the community service agency

-'6r\..hu:>

~~e.).-Cos.-\:s ~ fu.b iCt.30.<::C>

and 5.- 5~ ~ch

Cout\-\'

Lol\.~c.u.h.u'_o_.

. .\.- .
. '~

('\o %~

-+o

attorney fees in the total amount of$ \ q

The contempt proceedings are suspended on condition that citee comply with all terms and conditions of this order.
Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.

Execution of sentence for


0
hours in county jail
hours of community service
will be suspended for a period of
and citee is placed on court probation on condition that citee
comply with all terms and conditions of this order, and
a.
Comply with current support order.
Pay at least $
b.
per month on current support order, payable to (specify name):
commencing (date):
c.
Pay at least$
per month on arrears commencing (date):
d.
Serve any remaining hours not suspended as specified in items 13 and 14.

18.

Q.QQ.\.D~
1

{fJCA'(,
~ r{) .'.'Sc""-)
006 00 {IP--) payable to (specify name):

Sucherman . Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
W fines in the total amount of$
5,000 l-'~o.'olG.. ~ Q -l 4.-\.7

Citee must pay:

b.
16. a.
b.

d5

Citee must serve


in the county jail for counts (specify): 1, 2, 3, 4
To commence on (date): 8 16/16
~o be completed by (date):
Citee must report to (specify):
.
on (date):
_
at (time) :
}
a.

17.

are dismissed
0 with prejudice
D without prejudice.
That the request to dismiss the following counts alleged in the Order to Show Cause and Affidavit tor Contempt(form
FL-410) (specify):
is denied.

b.

Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
Local Child Support Agency
court
other (specify) :
a. Records of efforts to gain employment must include the name, address, and telephone numbers of individuals and
firms contacted regarding employment, the dates of such contact and the anticipated results.
b. Records of all actual employment must include the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.

,
FL-415 [Rev. July 1, 2003)

~ BS~N~Al.FDRM)

FINDINGS AND ORDER REGARDING CONTEMPT


(Family Law-Domestic Violence Prev~ntio.n- .
Uniform Parentage-Governmental)

43

..
Page 2 of 3

.J
PETITIONER/PLAINTIFF: -Ken Evilsizor
jREsPONDENTtDEFENDANT: Joseph James

CASE NUMBER:

013-01648

Sweeney

OTHER PARENT:

19. Orders for payments required to be made as conditions of probation or suspension of sentence in this order do not modify a court
ordered support obligation.
20. Citee must provide written notification to the superior court clerk of any change in residence and to
the local child support agency
the other party
of any change of residence, income, or employment within 10 days of the change.

21.

A wage and earnings assignment will issue.

22.

This matter is continued to (date):


at (specify time):
in court department (specify):
room (specify):
of this court for
compliance review. Citee is ordered to personally appear in court on that date and time.
WARNING: Failure to appear may result in issuance of a bench warrant for citee's arrest.

D
23.

A Warrant of Attachmentwill issue for citee's arrest. Bail is set in the sum of: $
Execution of the Warrant of Attachment is stayed until (date) :
at (specify court name):

24.

Other (specify):

25. Number of pages attached:

;l.
Date:

a-

I,,

further hearing

l1t-

Approved as conforming to court order and findings:


Date:

r-

2tfl

(JUDICIAL OFFICER OF THE SUPERIOR COURT)

~-~~~~--(SIGNATURE OF ATTORNEY FOR CITEE)

Signature follows last attachment

The citee agrees to the above terms:


Date:

(SIGNATURE OF CITEE)

FL-415 [Rev. July 1, 2003]

~ ~SE~AtFORMS-

FINDINGS AND ORDER REGARDING CONTEMPT


(Family Law-Domestic Violence PreventionUniform Parentage-Governmental)

44

Page 3 of 3

l
The Order to Show Cause for Contempt related to violations by the citee, Joseph
Sweeney, of a Domestic Violence Restraining Order issued on May 6, 2014 (hereafter
"restraining order"). The restraining order prohibits Mr. Sweeney from "using, delivering,
copying, printing or disclosing the messages or content of Petitioner's test messages or email
messages or notes, or anything else downloaded from her phone or from what has been called the
family computer except as otherwise authorized by the court."

In September of2015 Mr. Sweeney created or publicized a website entitled


"DivorcingtheEvilsizors.com" in which he described how it came to be that he gained access to
Ms. Evilsizor's phone and read and downloaded her text messages, bank records, and other
materials that are covered by the restraining order. In the website Mr. Sweeney further describes
in great detail much of the information he found.
Mr. Sweeney admitted in prior sworn testimony and at trial that he is the owner or only
partner of the LLC that owns the website at issue; that he created and posted the content on the
website; and that he had knowledge of the restraining order (and in fact he represented himself in
the appeal of the order and his petition for review of the appellate court opinion made to the
California Supreme Court).
It is clear beyond any reasonable doubt that the information laid out in Counts 1-5 of the
Order to .Show Cause did originate from Ms. Evilsizor' s phones and computers. This is clear
from the website itself, where Mr. Sweeney, in his own words, admits this information originated
from the phone (see Exhibit B to the OSC and especially the sections cited in Exhibit D and read
into the record at trial). Ms. Evilsizor' s testimony also supports this finding.
Mr. Sweeney asserts that because the material at issue has been disseminated elsewhere
since the time that he first viewed and downloaded it from Ms. Evilsizor' s phones and
computers, for instance when Ms. Evilsizor filed her DVPA request for restraining orders, and in
his appeal of the order that was granted, that this is a waiver and he can no longer be required to
comply with the restraining order. The Court does not agree with this position, and finds it
untenable, for a variety ofreasons, as laid out in the Court's oral decision as stated on the record.
Mr. Sweeney further argues that the restraining order is void or unconstitutional.
However, the appellate court has heard his appeal and affirmed the order.

45

The information published in relation to Counts 1-5 was without doubt extremely
personal and sensitive in nature, and very clearly covered by the restraining order.
The information published in each of Counts 1-5 is of a different nature, and each count
lays out a separate and specific violation of the restraining order.
The evidence shows, beyond a reasonable doubt, that a lawful order was made; Mr.
Sweeney had knowledge of the order; Mr. Sweeney had the ability to comply with the order; and

Mr. Sweeney willfully, and indeed maliciously, disobeyed the order.


In the 20 months that this Court has been hearing family law contempt OSCs, during
which it has heard more than 100 such cases, the Court has never incarcerated a citee, until this
case. Mr. Sweeney's violations of the family court's order are so blatant, and so clearly
malicious and for purposes of harassing, humiliating, and embarrassing Ms. Evilsizor, that there
must be accountability to the full extent permitted by law.

46




Exhibit J

47

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

0
W
D
D

8.
9.
10.
11.

CJBNS.ORG

Citee waived time for sentencing.


Citee waived time for trial.
Citee failed to appear as ordered.
Other (specify) :

T
HE a.
COURT ORDERS
12.
That the following counts alleged in the Order to Show Cause and Affidavit for Contempt(form FL-410) (specify) :

are dismissed
with prejudice
without prejudice.
That the request to dismiss the following counts alleged in the Order to Show Cause and Affidavit for Contempt(lorm

b.

FL-410) (specify):

13.

is denied.

Citee must perform


hours of community service for counts (specify) :
a.
To commence on (date):
to be completed by (date):

Citee must report to (specify) :

b.

-rq~O
~ (BC."'-) 0

w Citee must serve d5


w To commence on (date):

14.

at (time):

on (date):
Citee must pay an administrative lee

of$
as determined by the community service agency

Citee must report to (specify):


on (date):
15.

C~2ft-~ ~ ~
4<J\3() .<:C {il~
q cfB6 <::O {ES-)
at (time):

IX) Citee must pay:


a. IX) attorney lees in the total amount of$

17.

(\o

+o

payable to (specify name):

~ -\--
~
' rr&.,

f'\ n n ,

~e,o() /Be....... )

Sucherman. Insalaco LLP, 101 Mission Stre~t, Suite 1640, San Francisco, CA 94105
..5,000 P~o.'ol'2.. ~.0-~4-\.7

The contempt proceedings are suspended on condition that c1tee comply with all terms and conditions of this order.
Imposition of sentence is suspended on condition that citee comply with all terms and conditions of this order.

Cl

Execution of sentence for


will be suspended for a period of

hours of community service


hours in county jail
and citee is placed on court probat on on condition that citee

comply with all terms and conditions of this order, and


a.
Comply with current support order.
per month on current support order, payable to (specify name):
b.
Pay at least S
commencing (date):
c.
d.

18.

Cl
Cl
Cl Pay at least$
per month on arrears commencing (date):
Cl Serve any remaining hours not suspended as specified in items 13 and 14.

Cl Citee must seek and maintain employment and must keep written records, copies of which must be forwarded by the 5th day
of each month as follows to the
Cl Local Child Support Agency D court
Cl
(specify):
a. other
Records
of efforts to gain employment must include the name, address, and telephone numbers of individuals and
b.

firms contacted regarding employment, the dates of such contact and the anticipated results.
Records of all actual employment must include the name of the employer, dates, and hours worked and the gross
and net amounts of income from each employer.

Page 2 of 3

FINDINGS AND ORDER REGARDING QONTEMPT


(Family Law-Domestic Violence PreventionUniform Parentage-Governmental)

1191HX3

~ J.181HX3

48

8 .ll81HX3

_L..

V"...,..,_. rt:>

IX) tinesinthetotala~ountof$

b.
16. a.
b.

5~ ~ch

.in the county jaillor xounts (specify): 1, 2, 3, 4 and 5.Cov.'\;8 16/16 +'or\.hu.> ~o be completed by (date):
Cs> n.~c.u.h0-A.- 11 .

'I 1181HX3

Affidavit for Contempt(form

is denied.

ify name):

Francisco, CA 94105

-\4.--\1
and conditions of this order.
conditions of this order.
49

hours in county jail

JUDG E
BRUCE C. MI L LS
SUPE IOR COURT OF CAL I F O RN IA
COUN TY OF CON T RA COSTA
P ROFI LE

Attorney Gary Yancy and served as a

member of the party's Contra Costa


County central committee.

"It

was

kind

of

trumped-up,

according to what I've heard," said


Barry "Blackie" Burak, who has been

Appointed by Gov. Pete Wilson,

practicing for 3 5 years, largely in the

July 1995; deputy district attorney,

rough-and-tumble arena of drunken

Contra Costa County, 1987-95; associ

driving defense.

ate, Glaspy & Glaspy, San Jose-Walnut

Mills' courtroom, Burak said, is

Creek, 1984-87

"one of my favorite places to go. It's

Law school: Lewis & Clark Law

relaxed, user-friendly, with a great

School, Portland, O re.

staff. "
The

By John Roemer
Daily Journal Staff Writer

who

complained

deputy public defenders or deputy pros

WALNUT CREEK - Contra Costa

ecutors.

County Superior Court Judge Bruce

" S om e of these kids are a little

Clayton Mills launched a courtroom


rant that made lawyers

lawyers

about Mills were mostly newly minted

wince

thin-skinned, "

and

you on a daily basis. After six months,

had charged two co-defendants with

you were all scar tissue."

Judicial Performance.
"Judge Mills has engaged in a pat

Others agreed that Mills runs a

tern of making comments that are dis

superlative courtroom, where he often

courteous,

presides over arraignments, dispositions

stealing windows from a construction


His conduct in that and other cases

"Sure,

where judges used to beat the shit out of

Mills was upset that prosecutors

site.

said.

are obtuse. But I'm from the old school,

on Judicial Performance.

misdemeanors instead of felonies for

Burak

[Mills] is impatient with lawyers who

caught the attention of the Commission

sarcastic,

demeaning and

led to trouble with judicial watchdogs.

belittling to those appearing before

But senior members of the Contra Costa

him," the commission wrote.

and plea conferences.


In one noteworthy case last year,

bar describe Mills as an exemplary

Mills told one prosecutor who had

Mills sentenced a couple who left their

judge wrong ly singled out for disci

trouble producing a witness, "You are

children alone in San Ramon while

pline.

going to have to do preparation. .. . If

From the bench on that January

you continue to proceed this way and

day in 2005, Mills berated a deputy dis

you continue to choose not to do it,

trict attorney at length for undercharg

you're not going to be welcome any

ing the case. Mills pointed out that

longer in this court."


The

years as a prosecutor himself, some of

P erformance,

them as a felony-filing deputy.

Mills, 49, but let him keep his robe. The

is felony conduct," Mills

exclaimed in a shocked tone, according

Commission
voting

on

7-2,

Judicial
chastised

The judge demanded that senior

by," Mills said.


"He's a very bright guy and his
core instincts are very good,"

ishment.

William E. Gagen Jr. of Danville, a

Still, some of the county's most


experienced criminal defense attorneys

prosecutors revise the charges upward.

wasn't much precedent to measure it

two dissenters opted for private admon

to a transcript and a lawyer who was


present.

tion wearing an electronic monitor. His


wife got 1 8 0 days.
"It was a hard call because there

before he became a judge he'd spent

"This

spending five days in Las Vegas . Mills


gave the man 270 days of home deten

prominent criminal defense lawyer who


has practiced in the county since 1972.
Gagen thinks Mills learned his les

said Mills is a smart, savvy judge who


didn't deserve the ding on his career.
Appointed at 37, Mills was for a

"The fact that this got filed as a

said

son

from

his

run-in

with

the

Commission on Judicial Perfonnance.

absolutely

time the youngest judge in the state. He

" A course correction has been

appalled," Mills said. "My hair is on

was part of a husband-and-wife judicial

made," the lawyer said, "and r haven't

fire. "

team

heard a word about any problems

misdemeanor,

I'm

just

Mills' behavior fi t a history o f on

with

Contra

Costa

County

Superior Court Judge Cheryl Mills until

since."

young

their recent divorce. Before he took the

Gagen, who has known Mills since

lawyers that led last June to a public

bench, he was a Republican activist

Mills began working as a prosecutor in

admonishment by the Commission on

who

1 987, wrote a letter of support when the

the-record

hostility

toward

Daily Journal Corporation

campaigned

for

then-District

2007-1

JUDGE BRUCE C. MILLS, SUPERIOR COURT OF CALIFORNIA COUNTY OF CONTRA COSTA

CJP began its investigation. Mills calls

defined

Bar

"I just can't comment," he said. "I

Gagen "the godfather of the local bar. "

Association as "compassion, decisive

certainly do everything possible to fully

ness,

comply with the commission's deci-

"He's always been very fair to the

the

American

open-mindedness,

sensitivity,

defendants I represent," Gagen said,

courtesy, patience, freedom from bias

" and he conducts his courtroom effi

and commitment to equal justice . "

ciently and informally. He calls on

I n the hair-on-fire instance, the

sion."
Larkin, the Walnut Creek lawyer,
called the CJP's investigation a frighten

attorneys in the courtroom before he

Commission on Judicial Performance

deals with the pro pers. That lets him

concluded, Mills "assumed the role of

clear his arraignment calendar in short

the prosecutor in the case and engaged

order. I like that level of courtesy by the

in conduct that was inconsistent with

Mills' lawyer, James A. Murphy of

court."

the proper role of a judge as a neutral

San Francisco, has represented more

arbiter."

than a hundred judges, mostly in profes

A third veteran lawyer, David


accusers.

ing experienc e for the judge.


"Judge Mills was very intimidated
by those people," he said.

"It is improper," the CJP added,

Larkin of Wa.lnut Creek, faulted Mills'

sional liability cases.

"for a judge to use his or her judicial

Murphy sa.id Mills got into trouble

authority to attempt to influence officers

by trying to correct young lawyers,

with very little experience, " Larkin said.

of the court concerning criminal mat

chiefly deputy public defenders or pros

"If they think Judge Mills is bad, they

ters. "

ecutors, who appeared before him.

"You get young public defenders

ought to get out in the real world and


meet some really bad judges.
"Now, you can't find anyone who

I n other instances the commission

"He's run afoul of people who have

found that Mills accused lawyers . of

civil service status and think they have a

"stupidity and arrogance" and worse. In

constitutional right to a nine-to-five

with

the case of a woman accused of using a

j ob," Murphy said.

judges than me. Judge Mills is more

stolen credit card, Mills told her public

come in who are just not prepared.

has more eitperience

dealing

" S ome lawyers

than patient. He'll try to help these

defender that it was "akin to malprac

Instead of ignoring that, Judge Mills

young lawyers. He'll advise them to talk

tice" if he didn't convince his client to

takes an interest that quality legal repre

to their witnesses, for example. Then

consider a fine and diversion. The

sentation is accorded to all defendants."

they'll get arrogant and resent hearing

lawyer protested that he had so advised

Ironically, Mills presides in the

advice from the bench. "

her but would not apply undue pressure.

Walnut Creek courthouse near the for


mer courtroom of a bitter rival, Bruce

Larkin figured i n one o f the com

Mills pointed out that with diver

mission's charges, the claim that in 1 997

sion, the woman would avoid a criminal

Van Voorhis, who was also known for

and 1 998 Mills spoke separately and

record.

his short fuse. The men first clashed in

privately with him, with his client and

"We wouldn't want you to pressure

1 99 1 when Mills, then a deputy district

with the prosecutor in a misdemeanor

them into getting out from under that,"

attorney, campaigned to unseat Van

theft case. Such ex parte communica

he said. "Yeah, that would be wrong. . . .

Voorhis, then a Contra Costa Municipal

tions, as they are known, violate canon

And if you detect sarcasm in m y voice,

Court judge.

3B(7) of the state's Code of Judicial

that's the way it's intended . . . because I

Ethics.

am just so irritated at the folly of what

The upshot was that Mills private

Mills

Mills readily granted a recent

open court and allowed the accused to

Daily Journal interview request, saying

enter a diversion program. When the

he believes strongly in media access to

prosecution learned of the arrangement

the courts.

accused Van Voorhis

of

being mean-spirited and ill tempered.

you are doing here."

ly voided a no contest plea made in

and obj ected, Mills backed down, ter

"At times, his behavior can be


extremely inappropriate - insensitive,
almost bordering on abusive," Mills

said during the campaign.


Though Mills lost that 1 992 judi

He took the same stance as early as

cial election, Gov. P ete Wilson appoint

minated diversion and reinstated crimi

1 998, after just three years on the bench,

ed him to the Municipal Court in 1 995.

nal proceedings - an awkward move,

when he ignored defense and prosecu

He and Van Voorhis were elevated

because the defendant had successfully

tion obj ections and ruled that Court TV

to the Superior Court by consolidation

completed much of the program.

could broadcast Golden State Warrior

and assigned adj acent Walnut Creek

Latrell Sprewell's reckless-driving trial.

courtrooms.

"That was ancient history, " Larkin


said of the matter, which took place
years

by

before the

"The Rules of Court give the

other misconduct

media that right, and there was no basis

charges arose. "I'm amazed the commis

to keep them out, " Mills said. "I've

sion could drag that in. "

always been very open. I don't think

Burak said Mills often aids defen


dants who show signs of remorse or
efforts at self-help.

Mills called their relationship as


bench colleagues civil, if cool.
"We weren't pals," he said. "We
didn't go fishing together."

there's too much the govemme.nt does


that should be done in private."
Sprewell agreed to a plea bargain

Complaints against Van Voorhis


intensified and, as with Mills, reached
the

Commission

on

Judicial

"If he thinks a defendant is trying

and avoided the cameras and a trial. He

to make some strides in a program, he

was sentenced to three months of home

the CJP in 2003 removed Van Voorhis

goes out of his way to help, to put soe

detention.

from the bench for unethical conduct.

pressure on the DA to do right by him,"

Performance. Unlike Mills, however,

Though Mills agreed to an inter

The State Bar currently lists him as

view, he declined to discuss his experi

But it was clear to the watchdog

inactive but eligible to become active. It

ence with the Commission on Judicial

agency that Mills' demeanor occasional

reports he lives in Orinda, but has no

Performance, referring questions to his

listed phone number. He could not be

ly lacked the sometimes-elusive quality

attorney.

reached for comment.

Burak said.

known as judicial temperament. It's

2007-1

Daily Journal Corporation

JUDGE BRUCE C. MILLS, SUPERIOR COURT OF CALIFORNIA COUNTY OF CONTRA COSTA

Larkin contrasted Van Voorhis

For

the

prosecution:

Holly

Harpham, district attorney's office

unfavorably to Mills.
"Van Voorhis was a mean-spirited
man who picked on young female
lawyers and appeared to like to send 'em
out crying," he said. "I used to recuse
him, basically for being so discourte

For the defense: Bruce Kapsack,


Kapsack & Bair, Oakland
- People v. Stemley, 22 1 1 5 8-9

resisting a peace officer


For

the

prosecution:

Greg

Chambers, district attorney's office

ous.
"On the other hand, I didn't agree
that

the

commission

should

have

For the defense: Daniel Olmos,


public defender's office

removed Van Voorhis. I advised him


before his hearing to say he would

This profile originally appeared in

change his ways, but he went in there

the Los Angeles Daily Journal and San

claiming he'd done nothing wrong."

Francisco Daily Journal on January 1 7,

For his part, Mills said he loves his

2007

job and his life in the East B ay.


"I came here in 1 984 after law
school in Portland," he said, "and I
loved it here. Walnut Creek is a great
place. I like handling the local cases. I
like jury selection with the local people,
with attorneys I've known 1 0 years or
more. "
Mills spends free time traveling,
often

with

his

1 2 -year-old

son

Alexander. This year they are planning


a trip to Japan. Last year Mills visited
Bali and Belgium.
The judge is also a birder, with
hundreds of species on his life list.
Each morning, he drives Alexander
to

school

in Emeryville.

The

trip

through the Caldecott Tunnel gives


them a chance to band, he said.
The boy has resisted any thought
of a life in the law, his father said.
"He wants to be a py," Mills said.

Here are some of Judge Mills'


recent cases and the lawyers involved:
- People v. Wei, 1 2 6642-8 - prosti
tution
For the prosecution: Doug Foley,
district attorney's office
For

the

defense :

Shawn

S.

Salehieh, Presidio Law Group, San


Francisco
- People v. Varakur, 126 1 97-3 prostitution
For

the

prosecution:

P atrick

Graber, district attorney's office


For the defense: David J. Larkin,
Walnut Creek
- People v.Papaioannou, 2 2 1 4 1 2-0
- DUI
For

the

prosecution:

Greg

Chambers, dis trict attorney's office


For the defense: Daniel Olmos,
public defender's office
- People v. DeVusser, 1 24453-2 DUI

Daily Journal Corporation

2007-1

JUDGE BRUCE C. MILLS, SUPERIOR COURT OF CALIFORNIA COUNTY OF CONTRA COSTA

BI OGRAPHY
CURRENT ASSIGNMENT
Court: Superior Court of California
County of Contra Costa

Title: Judge
Dates: 1 998 to Present
Status: Elevated
Appointed by: Unification
Date: June 8, 1 998

PREVIOUS JUDICIAL
APPOINTMENTS
Court: Walnut Creek-Danville
Municipal Court
Title: Judge
Dates: 1 995 to 1 998
Status: Appointed
Appointed by: Governor Pete Wilson
Date: July 1 , 1 995

EDUCATION
Law S ch o o l : Lewis & Clark College
Location: Portland, OR
Date: 1 984
Degree: J.D.

PRACTICE HISTORY
Deputy District Attorney
Location: Contra Costa County

From: 1 987 to 1 995


Glaspy & Glaspy, Associate

Location: San Jose/Walnut Creek,


CA

From: 1 984 to 1 987


PERSONAL HISTORY
S ex: M

2007-1

Daily Journal Corporation

2016 Public Misconduct Report


Hon. Bruce Clayton Mills
Contra Costa County Superior Court
Code of Judicial Ethics Violations
California Commission on Judicial Performance
Investigation Prosecution Punishment

Contra Costa County Judge Bruce Mills


Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance

Page 1

Judge Bruce Mills Contra Costa County Superior Court


Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance
1. 2001 Private Admonishment

Page 3

At arraignment on a failure to appear, [Judge Mills] proceeded without appointing


counsel despite the defendants statements that he wanted counsel. The judge made
comments that disparaged the defendants version of the case and fostered the appearance
that the judge was attempting to pressure the defendant into pleading guilty.
2. 2006 Public Admonishment

Page 9

Judge Mills has engaged in a pattern of making comments that are discourteous,
sarcastic, demeaning and belittling to those appearing before him. Such remarks towards
a litigant or counsel are not consistent with the conduct required by canon 3B(4) Judge
Mills demeaning and insulting comments to the attorneys in open court were
inappropriate and in violation of canon 3B(4).
3. 2008 Advisory Letter

Page 24

During a probation revocation proceeding, [Judge Mills] used a bail order for the
improper purpose of collecting restitution by setting bail in cash and requiring the bail
depositor to sign over the funds deposited as bail to pay restitution.
4. 2011 Advisory Letter

Page 29

[Judge Mills] met with an officer seeking issuance of a warrant on a weekend when the
judge was serving as a duty judge. After the judge signed the warrant, the judges teenage
child expressed interest in accompanying the officer when the warrant was executed.
[Judge Mills] ascertained that it was acceptable to the officer for the judges child to
accompany the officer. The judges child was thereby able to bypass the ordinary process
for going on a police ride-along.
5. 2013 Public Admonishment

Page 34

By communicating his desired resolution of his sons case to the courtroom clerk of the
assigned pro tempore judge through channels not available to the public, [Judge Mills]
created an appearance of impropriety that undermined public confidence in the
impartiality and integrity of the judiciary.
Moreover, the fact that both the courtroom clerk and the pro tempore judge were
subordinate to the judge heightened the appearance and reality of impropriety. In
aggravation, [Judge Mills] had been previously disciplined for using his judicial position
to bypass proper channels on behalf of his son.

Page 2

2016 Public Misconduct Report


Hon. Bruce Clayton Mills
Contra Costa County Superior Court
Code of Judicial Ethics Violations
California Commission on Judicial Performance
Investigation Prosecution Punishment
Contra Costa County Judge Bruce Mills
Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance

Count 1 of 5
2001 Private Admonishment Documentation

Page 3

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

State of California
Commission on Judicial Performance

2001 Annual R eport

455 Golden Gate Avenue, Suite 14400


San Francisco, California 94102
(415) 557-1200
http://cjp.ca.gov

Page 4

IV.
Case Summaries

Gayle Gutierrez, Mr. Patrick M. Kelly, Mrs.


Crystal Lui, Judge Rise Jones Pichon, Justice
Vance W, Raye, and Ms. Ramona Ripston voted
to issue the notice of formal proceedings, and to
impose this public censure and bar from receiv
ing assignm ents. Com m ission member Mr.
Mike Farrell did not participate in this matter.
There was one public member vacancy at the
time of the decision.
CM3
Public Censure of Judge Patrick B. Murphy,
May 10, 2001
Judge Patrick B, Murphy of the Los Angeles
Superior Court was publicly censured and barred
from receiving any assignment, appointment or
reference of work from any California state
court. The Commission initially determined to
remove Judge Murphy from office, but stated
that if it was determined that the judge had re
signed before its order of removal, the order
would be considered one censuring former Judge
Murphy and barring him from receiving assign
m ents. It was later established that Judge
Murphy had resigned, and the Commission de
termined by resolution that its action was to be
considered a censure and bar. The Commission's
action concluded formal proceedings during
which there was a hearing before special mas
ters. Judge Murphy did not exercise his right to
appear before the Commission.
Claiming various illnesses, the judge was ab
sent for multiple, extensive periods over four
years. On days he claimed to be ill, the judge
engaged in activities such as teaching evening
law classes, sitting for depositions in civil liti
gation, completing prerequisites for admission
to medical school, and secretly enrolling in and
briefly attending medical school in the Carib
bean. The Commission found that the judge had
persistently failed or had been unable to perform
judicial duties, had failed to give judicial duties
precedence over all other activities, had engaged
in activities that interfered with the proper per
formance of judicial duties, had exhibited a lack
Hi

of candor to his presiding judge, had failed to


cooperate in the administration of court busi
ness and had malingered.
In its Decision and Order of Removal dated
May 10,2001, the Commission noted that it had
received a copy of a letter from Judge Murphy in
which he purported to resign from office, but
that the Governor's office had not confirmed
receipt of the letter. The Commission's deci
sion stated; "If it is determined that Judge
Murphy has resigned prior to this order of re
moval, this decision shall be considered a pub
lic censure of former Judge Patrick B. Murphy
and a bar from receiving any assignment, ap
pointment, or reference of work from any Cali
fornia state court."
Commission members Mr. Michael A. Kahn,
Judge Rise Jones Pichon, Ms. Lara Bergthold,
Judge M adeleine I. Flier, Mr. M arshall B,
Grossman, Ms. Gayle Gutierrez, Mrs. Crystal
Lui and Justice Vance W. Raye, voted in favor of
all the findings and conclusions and in the dis
cipline of Judge Patrick B. Murphy. Commis
sion members Mr. Mike Farrell and Ms. Ramona
Ripston did not participate in this proceeding.
There was one public member vacancy at the
time of the decision.
By resolution at its July 19-20, 2001 m eet
ing, the Commission indicated its receipt of in
formation that Judge Murphy's letter of resigna
tion was received and his pay terminated before
the Commission's May 10, 2001 decision and
further resolved that its decision was to be con
sidered a public censure and bar from receiving
any assignment, appointment or reference of
work from any California state court.
P r iv a t e D

is c ip l in e

P r iv a t e A d m o n is h m e n t s

Private admonishments are designed in part


to correct problems at an early stage, thus serv
ing the Commission's larger purpose of main
taining the integrity of the California judiciary.
A private admonishment also may be used

Page 5

IV.
Case Summaries

to elevate discipline in subsequent proceedings.


This is particularly true in cases where the judge
repeats the conduct that was the subject of the
earlier discipline.
In 2001, the Commission imposed five pri
vate admonishments. The admonishments are
summarized below. In order to maintain confi
dentiality, it has been necessary to omit certain
details, making some summaries less informa
tive than they otherwise would be. Because
these examples are intended in part to educate
judges and the public, and to assist judges in
avoiding inappropriate conduct, the Commis
sion believes it is better to describe them in ab
breviated form than to omit them altogether.
1. A judge's off-bench conduct undermined
public confidence in the integrity and impartial
ity of the judiciary. In addition, in a matter over
which the judge had presided, the judge made
comments that appeared to criticize the jury af
ter its verdict.
2. During a trial, the judge made comments to
the jury reflecting bias about the case. In an
other matter, the judge abused the judge's au
thority in an order involving payment of fees.
In a third matter, the judge improperly threat
ened an attorney with contempt.
3. In two separate civil matters, the judge made
remarks during court proceedings that dispar
aged the litigants and counsel. Some remarks
appeared to advocate one side of the case, and
some remarks appeared to reflect bias against a
particular class; some of the remarks had been
made in the presence of the jury. In a third mat
ter, the judge demeaned a potential juror.
4. A judge delayed in ruling on four matters
and executed an inaccurate salary affidavit.
5. At arraignment on a failure to appear, the
judge proceeded without appointed counsel de
spite the defendant's statements that he wanted
counsel. The judge made comments that dis
paraged the defendant's version of the case and
fostered the appearance that the judge was at
tempting to pressure the defendant into plead
ing guilty.
2001 Annual Repost

A d v is o r y L e t t e r s

The Commission advises caution or ex


presses disapproval of a judge's conduct in an
advisory letter. The Commission has issued
advisory letters in a variety of situations. As
noted by the California Supreme Court in
O berholzer v. C om m ission on Ju dicial Perfor
m an ce {1999), "Advisory letters may range from
a mild suggestion to a severe rebuke." (20
Cal.4th 371, 393.) An advisory letter may be
issued when the impropriety is isolated or rela
tively minor, or when the impropriety is more
serious but the judge has demonstrated an un
derstanding of the problem and has taken steps
to improve. An advisory letter is especially use
ful when there is an appearance of impropriety.
An advisory letter might be appropriate when
there is actionable misconduct offset by substan
tial mitigation.
In 2001, the Commission issued 19 advisory
letters. These advisory letters are summarized
below.
Delay, Dereliction of Duty
Judges are required to perform the duties of
judicial office diligently as well as impartially.
(Canon 3.)
1. A judge engaged in activities away from the
courthouse during working hours that under
mined public confidence in the integrity of the
judiciary,
2. In a family law matter, a judge delayed over
five months between the filing of objections to
a proposed statement of decision and the issu
ance of a signed statement.
Demeanor and Decorum
A judge "shall require order and decorum in
proceedings before the judge" and "shall be pa
tient, dignified, and courteous to litigants, ju
rors, witnesses, lawyers and others with whom
the judge deals in an official capacity..." (Canon
3 B(3), (4),|
3.

In two juvenile dependency matters, a judge

Page 6

Pacl !:)

INQUIRY CONCERNING MILLS

CJP Supp. 15

57 Cal.4th CJP Supp. 1 [July 2013]

III
DISCIPLINE
(8) In determining the appropriate level of discipline, we consider several
factors, including the following: number of incidents of misconduct, the
seriousness of the misconduct, whether the judge has prior discipline, whether
the judge acknowledges and appreciates the impropriety of his actions, the
impact of the misconduct on the judicial system, and the judges reputation
for administering his or her duties in a fair, impartial, and dignified manner.
(Policy Declarations of Com. on Jud. Performance, policy 7.1 [nonexclusive
factors relevant to sanctions]; e.g., Ross, supra, 49 Cal.4th CJP Supp. at
p. 138.)
Weighing heavily in aggravation is Judge Millss history of prior discipline. This is not the first time Judge Mills has been disciplined for using his
judicial position to bypass proper channels on behalf of his son. In 2011, he
received an advisory letter for, after signing a search warrant, allowing his
son to accompany a police officer in executing the warrant without going
through the ordinary application process for going on a ride-along.
In addition, Judge Mills received an advisory letter in 2008 for improperly
conditioning a defendants release in a misdemeanor probation revocation
proceeding on posting bail for the improper purpose of collecting restitution.
In 2006, he was publicly admonished for engaging in improper ex parte
discussions and for a pattern of making discourteous, sarcastic, and demeaning comments to attorneys and litigants appearing before him. And, in 2001,
he received a private admonishment for remarks suggesting a lack of
impartiality and attempting to obtain a guilty plea from a defendant despite
statements from the defendant indicating he wanted counsel.
Another aggravating factor is Judge Millss failure to acknowledge or
appreciate the impropriety of his actions. At the hearing before the special
masters and in his briefs to the commission, he insisted that he did nothing
improper. During his oral argument before the commission, Judge Mills
stated that, in hindsight, he realizes he should not have met with the pro
tempore judge in chambers. However, he immediately followed this acknowledgement with excuses and justifications for his conduct. The judge also
deflected questions about the public perception of his actions by questioning
Ms. Simss credibility and recollection of the time events occurred. His
presentation before the commission leaves us with no confidence that he
appreciates the impropriety of his actions.
(9) A judges failure to appreciate or admit to the impropriety of his or
her acts indicates a lack of capacity to reform. (Platt, supra, 48 Cal.4th CJP

Page 7

INQUIRY CONCERNING MILLS

CJP Supp. 16

57 Cal.4th CJP Supp. 1 [July 2013]

Supp. at p. 248; see Fletcher v. Commission on Judicial Performance (1998)


19 Cal.4th 865, 920921 [81 Cal.Rptr.2d 58, 968 P.2d 958]; Kloepfer v.
Commission on Judicial Performance (1989) 49 Cal.3d 826, 866 [264
Cal.Rptr. 100, 782 P.2d 239].) The fact that Judge Mills was advised by the
commission in February 2011 that it is improper to use his judicial position to
bypass normal procedures for the benefit of a family member makes his
failure to recognize the impropriety of his actions in October 2011 all the
more troubling. (See Inquiry Concerning Van Voorhis (2003) 48 Cal.4th CJP
Supp. 257, 301302; Doan v. Commission on Judicial Performance (1995) 11
Cal.4th 294, 339340 [45 Cal.Rptr.2d 254, 902 P.2d 272]; McCullough v.
Commission on Judicial Performance (1989) 49 Cal.3d 186, 199 [260
Cal.Rptr. 557, 776 P.2d 259] [failure to respond to prior discipline evidences
a lack of regard for the Commission, [the Supreme Court] and his obligations
as a judge].)
Judge Millss misconduct is further aggravated by the fact that Ms. Sims
and Ms. Peters were his subordinates. The judges conduct and his subsequent response to the charges evidence a lack of sensitivity to the pressure he
implicitly placed on them by virtue of his judicial position. (See Sarmiento,
supra, No. 191 at p. 7.)
We have already discussed the adverse impact of Judge Millss conduct on
public confidence in the impartiality of the judicial system, which is another
important factor in our assessment of the appropriate sanction. In imposing
public discipline, we assure the public that using the influence of judicial
office to obtain an advantage, no matter how slight, in a legal matter
involving a family member or friend is impermissible.
In determining to issue a public admonishment, rather than a higher level
of discipline, we take into consideration that Judge Mills did not overtly
pressure Ms. Sims or Ms. Peters to facilitate the meeting in chambers and
told Ms. Peters to do what she wanted or words to that effect, and the
requested disposition was not more lenient than would likely have occurred if
the attorney had appeared in open court on behalf of the judges son.12 We
also consider in mitigation the masters finding that Judge Mills was acting as
12

Judge Salvador Sarmiento was censured pursuant to a stipulation in 2012 for communications with a commissioner in nonpublic areas of the courthouse concerning his wifes traffic
ticket. While there are factual similarities with the present case, Judge Sarmientos conduct
was more aggravated. He approached the commissioner in the courthouse hallway and
followed her into her chambers where he asked her to address his wifes $300 penalty
assessment fee and left the ticket on the commissioners desk. The judge admitted he was
seeking to have the commissioner vacate the finesomething that would not necessarily occur
through proper channels. Moreover, he returned to the commissioners chambers later that day
and told her nothing had been done on the ticket. The commissioner told the judge she would
give him a trial date, but did not vacate the fee.

Page 8

2016 Public Misconduct Report


Hon. Bruce Clayton Mills
Contra Costa County Superior Court
Code of Judicial Ethics Violations
California Commission on Judicial Performance
Investigation Prosecution Punishment
Contra Costa County Judge Bruce Mills
Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance

Count 2 of 5
2006 Public Admonishment Documentation

Page 9

STATE OF CALIFORNIA
BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

IN THE MATTER CONCERNING

DECISION AND ORDER IMPOSING

JUDGE BRUCE CLAYTON MILLS

PUBLIC ADMONISHMENT

This disciplinary matter concerns Judge Bruce Clayton Mills, a judge of the Contra Costa
County Superior Court since 1995, whose current term began January 2003. Judge Mills and his
attorney, James A. Murphy, Esq., appeared before the commission on May 10, 2006, pursuant to
rule 116 of the Rules of the Commission on Judicial Performance, to contest the imposition of a
public admonishment. Having considered the written and oral objections and argument
submitted by Judge Mills and his counsel, and good cause appearing, the Commission on Judicial
Performance issues this public admonishment pursuant to article VI, section 18(d) of the
California Constitution, based upon the following Statement of Facts and Reasons:
STATEMENT OF FACTS AND REASONS
I.
In 1997 and 1998, Judge Mills engaged in and took action upon a series of improper ex
parte communications regarding the matter of People v. Mendell (No. 104058-3), in violation of
canon 3B(7) of the California Code of Judicial Ethics, as follows:
On November 4, 1997, Judge Mills presided over the Mendell misdemeanor theft case,
which was scheduled for jury trial that day. Ms. Mendell appeared with her attorney, David
Larkin, and entered a no contest plea. Two deputy district attorneys were present during the plea.
After the plea was taken, the deputy district attorneys left the building, and Mr. Larkin left the
courtroom, while Judge Mills and Ms. Mendell remained in the courtroom. Judge Mills and Ms.
Mendell then engaged in a conversation about her plea and the possibility of diversion, meaning
the criminal charges against her would be suspended while she fulfilled certain conditions (such
as working a certain number of community service hours and participating in a theft awareness
seminar), after which the charges would be dismissed. No prosecutor was present during this
conversation between the judge and Ms. Mendell.

Page 10

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

Ms. Mendells attorney, Mr. Larkin, then returned to the courtroom and discussed Ms.
Mendells case briefly with Judge Mills. No prosecutor was present during this conversation
between the judge and Ms. Mendells defense attorney.
Judge Mills and Mr. Larkin then went into Judge Millss chambers and continued
discussing the Mendell case; Ms. Mendell remained in the courtroom. While Judge Mills and
Mr. Larkin were in the judges chambers, Judge Mills summoned probation officer Susan Cruz to
his chambers. Ms. Cruz previously had determined that Ms. Mendell was not suitable for
diversion because she had been convicted of misdemeanor theft from Nordstrom in 1991. This
was indicated on a Diversion Eligibility form Ms. Cruz had prepared for the Mendell court file,
on which Ms. Cruz had noted: Same victim as 91 Grand Theft which received 1203.4 P.C. in
94. This notation indicated that the pending charges involved the same victim as a case in
which Ms. Mendell had been convicted in 1991 (although the 1991 charges were removed from
the record in 1994). After Ms. Cruz arrived in Judge Millss chambers, the case was discussed
further. Again, no prosecutor was present for this discussion.
Following Judge Millss initial ex parte courtroom conversation with Ms. Mendell, he
reviewed the Mendell court file and told Mr. Larkin that he would set aside Ms. Mendells no
contest plea and grant her diversion. Thereafter, following Judge Millss discussion in chambers
with Mr. Larkin and Ms. Cruz, the judge summoned defendant Mendell, who had been waiting in
the courtroom, to his chambers and informed her that he was granting her diversion. Mr. Larkin
and Ms. Cruz were present for this in-chambers discussion, but no prosecutor was present. Judge
Mills thereupon set aside the no contest plea Ms. Mendell had entered earlier that day in the
presence of the two prosecutors, and he granted her diversion. These post-plea proceedings were
not reported, and no prosecutor was present for them.
After Judge Mills granted Ms. Mendell diversion, she immediately began fulfilling the
conditions of diversion, including attending the theft awareness seminar and performing the
required community service.
After the Contra Costa District Attorneys Office received a copy of Judge Millss order
setting aside Ms. Mendells plea and granting her diversion, a supervising attorney from the
district attorneys office telephoned Judge Mills to object to the diversion order and to the
judges having taken action on the Mendell matter without notifying or involving any prosecutor.
Ms. Mendells defense attorney, Mr. Larkin, did not know of, or participate in, this telephone
communication between Judge Mills and the prosecutor about the Mendell case.
Because the district attorneys office objected to Judge Millss having set aside Ms.
Mendells plea and granting her diversion without its knowledge or consent, Judge Mills put the
Mendell case back on calendar and, at a hearing on January 12, 1998, terminated Ms. Mendells
diversion and reinstated criminal proceedings against her. By that time, Ms. Mendell had

Page 11

completed 130 hours of her 200 hours of community service, completed a 12-hour theft
awareness program, and paid $315 in fees.
Canon 3B(7) prohibits a judge from initiating, permitting, or considering ex parte
communications. In the Mendell case, Judge Mills committed multiple violations of this
prohibition. First, Judge Mills engaged in a conversation with Ms. Mendell about her case
outside the presence of her counsel or any prosecutor. Second, Judge Mills engaged in a
conversation with Ms. Mendells attorney, Mr. Larkin, about the case without any prosecutor
present. Third, Judge Mills conferred with Mr. Larkin and probation officer Cruz about the case
in his chambers with no prosecutor present. Fourth, Judge Mills further discussed the case with
Mr. Larkin, Ms. Cruz and Ms. Mendell in his chambers, and, following that discussion, took
action contrary to the previously-entered plea to which the prosecutor had agreed. Each of the
foregoing conversations about the Mendell case that occurred without any prosecutors
knowledge or consent constituted an improper ex parte communication in violation of canon
3B(7). Judge Millss later communications with a prosecutor about the Mendell case without the
knowledge or participation of defense counsel also was in violation of the prohibition against ex
parte communications set forth in canon 3B(7).
In addition to these violations of canon 3B(7), Judge Millss conduct was inconsistent
with canon 2A, which states that a judge shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.
In connection with Judge Millss objections under rule 116 to the commissions Notice of
Intended Public Admonishment, the judge and his counsel asserted in writing and during their
appearance before the commission on May 10, 2006 that discipline cannot rest on the underlying
Mendell matter because of the lapse of time since 1997 when the alleged misconduct occurred.
The argument proceeds from an assumption the complaint was filed in 2001; the judge contends
the commission has violated its own rules and policy declarations by the assumed five-year delay
of its ensuing investigation. The judge also postulates the commission may have removed the
matter from its active calendar, in which case he contends there was no proper basis for such
action under Commission Policy Declaration 1.8. That policy declaration specifies nonexclusive circumstances under which the commission may remove a case from its active
calendar.
The current proceedings before the commission represent the consolidation of seven
separate complaints to the commission concerning Judge Mills. The first complaint was not filed
in 2001, but rather in June 2003. Thereafter, six additional complaints were filed, beginning in
January 2004 and spanning the period to late-March 2005. Consistent with commission policy,
each subsequent complaint was consolidated with the first-filed complaint. The commission
consolidates multiple open and pending complaints against a judge for reasons that include the
need to ascertain whether there are patterns of behavior, and in order to assess the aggregate
magnitude and severity of possible wrongdoing. The commission did not remove the

Page 12

consolidated investigations from the active calendar at any time. Rather, the seven consolidated
complaints, involving a wide variety of subject matters and witnesses, were investigated in a
timely manner and consistent with standard commission policies and procedures.
Judge Mills also contends in his rule 116 objections he was prejudiced because former
Judge Cunningham, who would have supported [Judge Millss] explanation of his conduct,
died during the pendency of the commissions investigation. According to Judge Mills, the lateJudge Cunningham would have substantiated that at the time of the Mendell matter in 1997, the
District Attorney of Contra Costa County did not staff misdemeanor arraignment calendars and
did not object to a judge granting diversion or accepting a plea in the absence of a prosecutor at
such proceedings.
In support of Judge Millss rule 116 objections to the proposed public admonishment, the
judge did present declarations to the commission from another Contra Costa County judge and
two attorneys that substantiated the practices in question. However, the prosecutors general
policy of not staffing certain hearings is irrelevant to Mendell and the judges misconduct in
handling that matter. Notwithstanding the general practice, two deputy district attorneys were
present at the plea hearing in Mendell; further, the prosecutor thereafter objected when Judge
Mills set aside the plea and granted the defendant diversion. Thus, Judge Mills has not been
prejudiced by the lack of further substantiation by Judge Cunningham of the general policies,
because, unlike the general situation, the prosecutor was present and active in Mendell.
As respects the Mendell post-plea ex parte communications between the district
attorneys office and Judge Mills, the judge submitted a declaration in support of his rule 116
objections. The declarant was one of the two deputy district attorneys who were present at the
plea hearing, who attested he never engaged in any ex parte communication with Judge Mills.
However, the post-plea ex parte communications between the judge and the prosecutors office
did not involve the attorney who filed the declaration. Rather, there is clear and convincing
evidence that an attorney in the district attorneys office, who was senior to the two deputies who
were present for Ms. Mendells plea, had substantive ex parte communications with Judge Mills
that resulted in the case being rescheduled for the purpose of setting aside the diversion order.
Judge Mills also urges in his rule 116 objections that his post-plea communications with
the prosecutor falls within exception (d) to canon 3B(7), which permits a judge to have ex parte
communications for scheduling purposes. However, at the outset of the hearing on January 12,
1998 that was scheduled because of the prosecutors protest over the granting of diversion, Judge
Mills made a statement that undermines his claim the conversation involved only scheduling.
The judge stated as follows: After the grant of diversion was made, the district attorneys office
advised me of other factors I was not aware of. I telegraphed that immediately to Mr. Larkin,
your counsel, and indicated that the case would have to be put back on calendar for further
discussions. (1/12/98 R.T. 2:1722, italics added.) The judges introductory comment confirms

Page 13

the evidence that the communications with the prosecutor involved substance, beyond
scheduling. The scheduling exception of canon 3B(7)(d) therefore was inapplicable.
II.
On January 5, 2005, while presiding over an arraignment, disposition and plea conference
in People v. Rieboldt (No. 122979-9), Judge Mills assumed the role of the prosecutor in the case
and engaged in conduct that was inconsistent with the proper role of a judge as a neutral arbiter.
In that case, two co-defendants were charged with misdemeanors for having stolen windows
from a construction site. Judge Mills was asked to give the defendants an indication of the
sentence he would impose if they were to plead guilty to the misdemeanor charges. The
transcript indicates that after Judge Mills reviewed the court file in the case, he made the
following remarks:
THE COURT: In addition, the district attorneys office has
not charged a violation of 182 of the Penal Code which is felony
conspiracy, which is a straight felony. Its not even a wobbler. []
This conduct of these two co-defendants is felony conduct, for a
variety of reasons. [] One, because it is a criminal conspiracy to
commit grand theft. When grand theft is, say, between $400,
which is the bottom, and say, up to somewhere between 2,000 and
$4,000, there could be some debate about whether it should be
treated as a misdemeanor or as a felony. [] When the losses
exceed $4,000, then generally in my experience, which runs back
in the county some twenty years, its generally been the policy of
the district attorneys office to pursue the cases on the felony level.
[] []
THE COURT: Im appalled by this case, Ive got to tell
you. [] You know, I sit here day in and day out, and frankly, a lot
of the cases are misdemeanor cases, that in the grand scheme of
what comes through the courts in California, I can think its fairly
fair to say, are de minimis in nature. [] This is not one of them.
[] And one thing that Mr. Torres hopefully can appreciate, is that
the breadth of my experience is not limited to handling
misdemeanor cases here. [] In this county, I spent two years of
my life as a felony filing deputy. I am one of only two people, to
my knowledge, in the history of this county to have held that job
twice [] which means that, I have as much if not more
experience than any person in the history of this county, in
reviewing felony cases to decide what charges should be filed, and
if so, at what level, be it felony or misdemeanor. [] This is felony
conduct. [] The fact that this got filed as a misdemeanor, Im just
absolutely appalled. My hair is on fire.

Page 14

I cant tell you how stunned I am that somebody could be


caravanning away from construction sites, using two trucks to
more efficiently steal thousands of dollars worth of windows, to
have not only admitted to having done it on numerous other
occasions, but having checks issued by the fence company thats
getting rid of and disposing these thousands of dollars of stolen
property, and to have everybody think that this is one misdemeanor
count of grand theft that is going to be dealt with de minimisly
[sic]. [] Frankly, I cant understand how it got to this posture. I
am stunned.
Miss Hamoy [deputy district attorney], I know that
apparently you didnt file this case. [] I dont know how the
deputy DA who received this at the misdemeanor desk didnt run it
up the flag pole. Maybe they did. Maybe they took it to the felony
filing deputy and got marching orders to pursue it as a
misdemeanor case. [] I cant understand that. I dont know how.
[] Its not a question of problems of proof. [] Not only do we
have full confessions, but we have the checks issued by the
company that paid Mr. Torres for these windows, on multiple
different dates. [] So its not a question of problems of proof. []
I just dont know how we got to this point.
So my thought is as follows. [] One of two things is
going to happen. [] Based on my comments here today, either
Mr. Torres is going to plead and the case is going to get resolved
today, or somebody is going to go back to the drawing board, have
this reviewed by somebody that can intelligently assess what ought
to have been charged, and I would think that it would be more
likely than not that an amended pleading would come down the
pike, charging, among other things, a violation of Section 182 of
the California Penal Code, felony criminal conspiracy, between
the two charged co-defendants.
(1/5/05 R.T. 4:107:23, italics added.)
Judge Millss conduct was contrary to canon 1, which requires judges to maintain high
standards of conduct ... so that the integrity and independence of the judiciary will be preserved,
and canon 2A, which requires that a judge shall act at all times in a manner that promotes
public confidence in the integrity and impartiality of the judiciary. The authority to charge
criminal cases is outside the scope of judicial power. (Ryan v. Commission on Judicial
Performance (1988) 45 Cal.3d 518, 535.) It is improper for a judge to use his or her judicial

Page 15

authority to attempt to influence officers of the court concerning criminal matters. (Gonzalez v.
Commission on Judicial Performance (1983) 33 Cal.3d 359, 366-369.) As the California
Supreme Court stated in Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826,
845 (Kloepfer), the court must not undertake the role of prosecutor or defense counsel if public
confidence in the integrity of the criminal justice system is to be maintained. Repeating its
earlier admonition in People v. Carlucci (1979) 23 Cal. 3d 249, 258, the court in Kloepfer stated,
It is fundamental that the trial court must refrain from advocacy and remain circumspect in
its comments on the evidence, treating litigants and witnesses with appropriate respect and
without demonstration of partiality or bias. (Kloepfer, supra, 49 Cal.3d at 845.)
III.
In 2004 and 2005, Judge Mills engaged in a pattern of conduct that is inconsistent with
canon 3B(4), which requires a judge to be patient, dignified, and courteous with persons with
whom the judge deals in an official capacity. The judges conduct included making sarcastic,
demeaning and belittling comments to attorneys and litigants appearing before him, and referring
to malpractice when admonishing attorneys while their clients were present. This conduct is
exemplified by the following:
A. People v. Milla
On November 22, 2004, Judge Mills presided over People v. Milla (No. 122374-2), a
misdemeanor theft case involving the use of a stolen credit card. Deputy Public Defender Jivaka
Candappa, who was representing defendant Milla, told Judge Mills that the defendant was
unwilling to accept the disposition offered by the court. The transcript reflects the following
exchange, which occurred in open court in the presence of the defendant:
THE COURT: Fine. Sometimes I cant protect people
from themselves, and sometimes I cant protect people from an
attorney that is giving them the wrong advice. [] What I can tell
you, Mr. Candappa, is that this is just stupidity and arrogance. []
Your client absolutely has an opportunity to get out from under this
for a $250 fine, and you are helping steer her into a path of
jeopardy where she can go to jail for up to a year and a fine -MR. CANDAPPA: Your Honor -THE COURT: You know what? Fine. I dont need to talk
about it any more. If thats what you want to do and thats the way
you want to play it, go ahead. Well see where this gets you.
MR. CANDAPPA: Your Honor, your Honor, in fact, I
advised Miss Milla to consider diversion but, and [sic] the
probation officer spoke with her and then Miss Milla didnt want to

Page 16

do it. So I have not been steering her anywhere in that context, as


your Honor would suggest -THE COURT: Well, you ought to be steering her
somewhere, Mr. Candappa. You ought to be steering her to take
care of this for a $250 fine and no criminal history, thats what
you ought to be doing. [] But far be it for me, whos been in the
system for some twenty years now, to tell you how to do your job.
God knows, I tell the DAs how to do it often enough, maybe its
time I tell the defense how to do their job once in a while, too. []
Mr. Candappa, to do anything other than taking this offer to
resolve this case along the lines I am suggesting, is akin to
malpractice, in my view. But you go how you want to go. []
After twenty years, how this case ought to be disposed of is selfevident to me, and I suspect to everybody else in this room. Except
perhaps you. [] I dont know what else to tell you.
MR. CANDAPPA: Well, your Honor, I am not responsible
-- just as when clients want to take pleas against my counsel, when
clients dont want to take pleas against my counsel, this is one area
where I do not steer, I convey the advice, I give analysis, I give the
advice. But it is the clients decision to accept or reject the offer. I
have been very clear on both sides, with one way or the other. []
And that is how I have chosen to do because that is how, I dont
apply undue pressure either to take or not take it.
THE COURT: Yes, we wouldnt want you to apply undue
pressure to somebody to avoid a year in the county jail, a potential
consequence of court probation, and a criminal history, we
wouldnt want you to pressure them into getting out from under
that, and pressure them into paying a $250 fine and resolving the
case for an infraction that doesnt start a criminal history, yeah, that
would be wrong, Mr. Candappa. And if you detect sarcasm in my
voice, thats the way its intended. [] And I try not to be sarcastic
from the bench, but in this case I just cant help myself, because I
am just so irritated at the folly of what you are doing here.
(1/22/04 R.T. 13:115:7, italics added.)
At the end of the hearing, Judge Mills said to Mr. Candappa, Perhaps its time you start
picking up the books and figuring out what youre doing. (1/22/04 R.T. 17:1314, italics
added.)

Page 17

The foregoing remarks by Judge Mills evidence a lack of patience, dignity and courtesy
toward Mr. Candappa, contrary to the requirements of canon 3B(4).
B. People v. Gilmer
On January 19, 2005, Judge Mills presided over the arraignment in People v. Gilmer (No.
123268-5). Deputy Public Defender Jivaka Candappa attempted to file a peremptory challenge
against Judge Mills under Code of Civil Procedure section 170.6. That section grants a litigant
the right to disqualify a judge from hearing a case based on an affidavit of prejudice; only one
section 170.6 challenge may be exercised in any action. The transcript indicates that when Mr.
Candappa presented his 170.6 affidavit, Judge Mills made the following remarks:
THE COURT: Mr. Candappa, I received a document
encaptioned Peremptory Challenge Under 170.6 of the Code of
Civil Procedure, on this department. And I am somewhat puzzled.
[] Maybe you could explain. [] ... [] The court has already
reviewed and made an offer on the case. And therefore, has
already determined a contested issue of fact relating to the merits
of the case. [] I cant be challenged pursuant to 170.6 with regard
to the conducting of this ADP [arraignment, disposition and plea
conference]. [] You cant come before the court on ADP, obtain
an offer from a judge, and then after you hear the offer, if you dont
like the offer, decide to enter a peremptory challenge. []
Peremptory challenges dont work that way, its prohibited. []
[] Exercising the peremptory challenge, in my view, would be
malpractice because you are now waiving your ability to exercise
a peremptory challenge on a trial department that you may be
assigned out to. [] But thats your decision to make. [] Do you
want to file this now? [] . . . []
THE COURT: Mr. Candappa, in this case, this case has
previously been on for ADP, before this court. [] This court has
previously made an offer on this case. And you cant now forum
shop by circumventing the offer made by this court on this case by
papering this department. [] It doesnt work that way. As much
as you might like to. [] Youre not under any obligation to take
the offer. So I find it puzzling that you would exercise a
peremptory challenge prior to going to the master calendar
department. [] In fact, there is some case law that might indicate
that that is bordering on malpractice, but, because there is no
practical effect of this peremptory challenge [sic]. [] You cant
get out from under the offer thats been previously made by this

Page 18

10

department on this case. Because you cant exercise a peremptory


challenge after hearing the offer of the court.
(1/19/05 R.T. 2:115:7, italics added.)
Judge Mills eventually accepted the filing of the 170.6 challenge.
Judge Millss remarks to Mr. Candappa about malpractice were improper, in violation
of canon 3B(4), which requires a judge to treat those appearing before the judge with patience,
dignity, and courtesy. In addition, Judge Mills improperly attempted to dissuade Mr. Candappa
from exercising a Code of Civil Procedure section 170.6 challenge against him. A judge may
only inquire into the timeliness of a section 170.6 challenge or its technical sufficiency, not into
the reasons for the challenge. (McCartney v. Commission on Judicial Qualifications (1974) 12
Cal.3d 512, 531-532.)
C. People v. Ibrahim
On January 26, 2005, Judge Mills presided over the arraignment of the defendant in
People v. Ibrahim (Nos. 121353-7 and 123639-7). Mr. Candappa again attempted to file a
peremptory challenge under Code of Civil Procedure section 170.6. Judge Mills previously had
conducted an arraignment, disposition and plea hearing at which the defendant appeared in pro
per. At that hearing, Judge Mills had made a settlement offer directly to the defendant, who did
not accept the offer and was referred to the public defenders office for representation. Mr.
Candappa was appearing for the defendant for the first time on January 26, 2005. In response to
Mr. Candappas submission of the section 170.6 challenge at that appearance, Judge Mills said:
THE COURT: Fine. Do you want a trial date? [] Again,
I reiterate, you cannot have an offer from a court, and after hearing
the offer, decide you dont like it after the court has already
reviewed the case and made the offer, and then forum shop. The
system does not permit that, Mr. Candappa. [] For purposes of
the pretrial offer, its too late to do what youre attempting to do.
Thats why its not done. In fact, to do it is malpractice.
(1/26/05 R.T. 5:276:8, italics added.)
Judge Millss characterization of Mr. Candappas decision as malpractice in front of
the client was discourteous, in violation of canon 3B(4).

Page 19

11

D. People v. Datta
On August 29, 2003, Judge Mills presided over the misdemeanor theft case of People v.
Datta (No. 118628-7), which was set for trial that day. The prosecutor handling the case, Deputy
District Attorney Crystal Howard, had learned that morning, before trial was to begin, that the
police officer whose availability she had confirmed two days before was now unavailable for trial
that day. Ms. Howard made an oral motion to continue the trial, following which Judge Mills
and Ms. Howard had the following exchange:
THE COURT: You are going to have to change the
manner in which you prepare for your cases. You are going to
have to do preparation. You are going to have to contact your
witnesses in advance. If you continue to proceed this way and you
continue to choose not to do it, youre not going to be welcome any
longer in this court.
MS. HOWARD: May I respond, your Honor?
THE COURT: I dont know how else to put it. I have had
this discussion with you. And its not that I dont understand your
position. I have been in your position. I have been a deputy
district attorney with numerous cases to prepare for trial on a
particular day. I have spent hours toiling on the phone contacting
witnesses in advance so that I am prepared when I show up on trial
day. [] In 107 jury trials I never showed up on trial day once
without having talked to my witnesses in advance, and without
having prepared my witnesses before they took the stand. [] This
is a chronic problem with you. It is a problem for which you and I
have discussed the remedy. And its a problem for which you
choose not to pursue the remedy. [] Im exceedingly
disappointed, I dont know how else to put it. I dont understand
this, showing up on trial day and not knowing the status of your
witnesses, its a mystery to me.
MS. HOWARD: Could I respond, your Honor, please?
THE COURT: I dont know what you could say. What
could you possibly say? You waited until trial day and you got
burned again. What could you possibly say?
MS. HOWARD: I could tell the court I did, in fact, call the
Sheriffs Department last night, asked to speak with Officer

Page 20

12

Heuerman and Deputy Moore. Was informed they were not


working. [] Called the Fremont Police Department, asked to
speak with Officer Barrett and Officer Wack. Officer Barrett
called me back. He told me both he and Officer Wack are working
and are available. [] I spoke with Deputy Moore who told me he
is, in fact, available. [] I spoke with our subpoena clerk at our
office who told me, when I had explicitly told them, please find out
if theyre not available because we need declarations ahead of time,
I was told everyone had been told it was trailing until today, no
declarations had been returned. [] So I realize that I may not
have spoken to everyone last night, I did what I could. [] []
THE COURT: You cant call witnesses to the stand that
you havent prepped, that you havent sat down and talked to and
gone over the case and their testimony with. It is quote,
malpractice, end quote, to call witnesses to the stand that have
not been prepared. Its malpractice.
(8/29/03 R.T. 3:256:12, italics added.)
Judge Mills failed to treat Ms. Howard with patience, dignity and courtesy, as required by
canon 3B(4), particularly when he told her she would not be welcome in his court and when he
accused her of malpractice in open court.
E. People v. Contreras
In mid-December 2004, Judge Mills presided over the jury trial of People v. Contreras
(No. 121632-4). At trial, the deputy public defender representing defendant Contreras, Joni
Spears, requested a court interpreter on the basis that her client did not understand, or
proficiently speak, English. Judge Mills initially allowed a court interpreter for the defendant.
Partway through the trial, however, Judge Mills conducted a hearing outside the presence of the
jury to determine the defendants need for an interpreter and concluded that the defendant was
sufficiently fluent in English and that an interpreter was not warranted. Judge Mills then
dismissed the interpreter. After the defendant was convicted by the jury, Ms. Spears argued that
the dismissal of the interpreter had been the basis for the jurys conviction of her client. During
this argument, Judge Mills made the following comments to Deputy Public Defender Spears
while the defendant was present:

Page 21

13

But I am not going to continue to spend $180 per


interpreter, per half day, to conduct a charade with the defendant
that, if I believe he can clearly understand English, is having the
interpreters here to establish the fictional defense.
(12/10/04 R.T. 72:2327, italics added.)
Unfortunately, you know, while this is entertaining that you
have this opinion, it is not founded in the law.
(12/10/04 R.T. 227:1618, italics added.)
THE COURT: Because Mr. Contreras was feigning he
didnt understand the questions, and it was just a game. It was a
dog and pony show, Miss Spears.
(12/13/04 R.T. 255:1113, italics added.)
A judge has discretion to make a credibility determination with regard to whether a
defendant is entitled to a court-ordered interpreter. (In re Raymundo B. (1988) 203 Cal.App.3d
1447, 1452-1458.) Nevertheless, the foregoing comments Judge Mills made in connection with
exercising his discretion were sarcastic and discourteous to the defendant and to his attorney in
violation of canon 3B(4).
Judge Mills has engaged in a pattern of making comments that are discourteous, sarcastic,
demeaning and belittling to those appearing before him. Such remarks toward a litigant or
counsel are not consistent with the conduct required by canon 3B(4). (See, e.g., Kennick v.
Commission on Judicial Performance (1990) 50 Cal.3d 297, 323-327 [disapproving the use of
demeaning, rude, impatient and abusive behavior toward counsel]; Cannon v. Commission on
Judicial Qualifications (1975) 14 Cal.3d 678, 703 [disapproving the ridiculing of attorneys].)
In Judge Millss written rule 116 objections and at his appearance before the commission
on May 10, 2006, the judge acknowledged his malpractice language was inappropriate and he
apologized to the commission for using it. He also submitted the declarations of a judge and two
attorneys in support of his contention that the conduct of the attorneys in some of these cases fell
below the standard of care expected of a competent attorney. However, the issue before the
commission is not whether there was attorney malpractice, but rather, whether there was judicial
misconduct. Irrespective of whether the attorneys in question were acting in a competent
manner, Judge Millss demeaning and insulting comments to the attorneys in open court were
inappropriate and in violation of canon 3B(4).

Page 22

14

In determining to issue this public admonishment, the commission noted that Judge Mills
received a private admonishment in 2001 for ignoring a defendants request for counsel and
attempting to coerce him into a guilty plea.
Commission members Mr. Marshall B. Grossman, Judge Frederick P. Horn, Justice
Judith D. McConnell, Ms. Patricia Miller, Mr. Jose Miramontes, Mrs. Penny Perez and Ms.
Barbara Schraeger voted for a public admonishment. Commission members Judge Ris Jones
Pichon and Mr. Lawrence Simi voted for a private admonishment that would not base any
discipline on the Mendell matter because of the passage of time since Judge Mills presided over
that case. Commission members Mr. Michael Kahn and Mrs. Crystal Lui did not participate.

Dated: June _12_, 2006

______________/s/__________________
Marshall B. Grossman
Chairperson

Page 23

2016 Public Misconduct Report


Hon. Bruce Clayton Mills
Contra Costa County Superior Court
Code of Judicial Ethics Violations
California Commission on Judicial Performance
Investigation Prosecution Punishment
Contra Costa County Judge Bruce Mills
Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance

Count 3 of 5
2008 Advisory Letter Documentation

Page 24

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

STATE OF CALIFORNIA
COMMISSION ON JUDICIAL PERFORMANCE

2008

ANNUAL REPORT

455 Golden Gate Avenue, Suite 14400


San Francisco, California 94102
(415) 5 5 7 4 2 0 0
http://cjp.ca.gov

Page 25

IV.
CASE SUMMARIES
SSaSSSgS3S3S*aaS*SiSS535^SKK2Sa^

8. A judge, while presiding over post-trial


proceedings, made comments about the parties and
the prospects of settlement that reflected embroil
ment and created an appearance of lack of impar
tiality.
On-Bench Abuse of Authority
Acts in excess of judicial authority may consti
tute misconduct, particularly where a judge delib
erately disregards the requirements of fairness and
due process. (See Gonzalez v. Commission on Judicial
Performance(1983)33 Cal.3d 359,371,374; Cannon
v. Commission on Judicial Qualifications (1975) 14
CalJd 678, 694.)
9. A judge threatened to terminate the
repotting of a juvenile proceeding, contrary to
Welfare and Institutions Code section 677 which
requires that "all of the testimony and statements
and remarks" of the judge and all persons appearing
at all juvenile court proceedings be reported.
10. During a probation revocation proceeding,
a judge used a bail order for the improper purpose
of collecting restitution by setting bail in cash and
requiring the bail depositor to sign over the funds
deposited as bail to pay restitution.
11. A judge's use of a research attorney to confer
with counsel regarding a motion appeared incon
sistent with according the parties a full right to be
heard and created an appearance of impropriety.
Disclosure and Disqualification
Judges must disqualify themselves under certain
circumstances and trial judges must make appro
priate disclosures to those appearing before them.
(Canon 3E.)
12. A judge failed to disclose a relationship
with an attorney appearing before the judge until
the end of a hearing, after the judge had granted
the relief sought by the attorney's client.
Off-Bench Improprieties
A judge is required to respect and comply
with the law and to act at all times in a manner
that promotes public confidence in the integrity
and impartiality of the judiciary. The prohibition
against behaving with impropriety or the appear-

2008 ANNUAL REPORT

ance of impropriety applies to both the professional


and personal conduct of a judge. (Canon 2A and
Commentary.)
13. A judge failed to cooperate with the pre
siding judge in administrative matters concern
ing time off from court.
Failure to Ensure Rights
Society's commitment to institutional justice
requires that judges be solicitous of the rights of
persons who come before the court. (See Geiler
v. Commission on Judicial Qualifications (1973) 10
CalJd 270, 286.)
14. When a criminal defendant's counsel
of record failed to appear for trial, the judge said
that the defendant was nevertheless going to trial
or pleading that day. The defendant pled that day,
assisted by another attorney.
Administrative Malfeasance
Judges are required to diligently discharge their
administrative responsibilities. (Canon 3C.)
15. A judge failed to obtain prior approval from
the presiding judge for absences of more than onehalf day, as required by California Rules of Court,
rule 10.603.
Abuse of Contempt/Sanctions
Before sending a person to jail for contempt or
imposing a fine, judges are required to provide due
process of law, including strict adherence to the
procedural requirements contained in the Code of
Civil Procedure. Ignorance of these procedures is
not a mitigating but an aggravating factor. (Ryan
v. Commission on Judicial Performance (1988) 45
Cal.3d 518, 533.)
16. A judge held a juror in contempt without
following required procedures and displayed
sarcasm toward the juror. The judge later improp
erly remanded the juror to a lockup area before
adjudicating further contempt by the juror.
More T h a n One Type of Misconduct
Some cases involved more than one type of
misconduct.

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57 Cal.4th CJP Supp. 1 [July 2013]

III
DISCIPLINE
(8) In determining the appropriate level of discipline, we consider several
factors, including the following: number of incidents of misconduct, the
seriousness of the misconduct, whether the judge has prior discipline, whether
the judge acknowledges and appreciates the impropriety of his actions, the
impact of the misconduct on the judicial system, and the judges reputation
for administering his or her duties in a fair, impartial, and dignified manner.
(Policy Declarations of Com. on Jud. Performance, policy 7.1 [nonexclusive
factors relevant to sanctions]; e.g., Ross, supra, 49 Cal.4th CJP Supp. at
p. 138.)
Weighing heavily in aggravation is Judge Millss history of prior discipline. This is not the first time Judge Mills has been disciplined for using his
judicial position to bypass proper channels on behalf of his son. In 2011, he
received an advisory letter for, after signing a search warrant, allowing his
son to accompany a police officer in executing the warrant without going
through the ordinary application process for going on a ride-along.
In addition, Judge Mills received an advisory letter in 2008 for improperly
conditioning a defendants release in a misdemeanor probation revocation
proceeding on posting bail for the improper purpose of collecting restitution.
In 2006, he was publicly admonished for engaging in improper ex parte
discussions and for a pattern of making discourteous, sarcastic, and demeaning comments to attorneys and litigants appearing before him. And, in 2001,
he received a private admonishment for remarks suggesting a lack of
impartiality and attempting to obtain a guilty plea from a defendant despite
statements from the defendant indicating he wanted counsel.
Another aggravating factor is Judge Millss failure to acknowledge or
appreciate the impropriety of his actions. At the hearing before the special
masters and in his briefs to the commission, he insisted that he did nothing
improper. During his oral argument before the commission, Judge Mills
stated that, in hindsight, he realizes he should not have met with the pro
tempore judge in chambers. However, he immediately followed this acknowledgement with excuses and justifications for his conduct. The judge also
deflected questions about the public perception of his actions by questioning
Ms. Simss credibility and recollection of the time events occurred. His
presentation before the commission leaves us with no confidence that he
appreciates the impropriety of his actions.
(9) A judges failure to appreciate or admit to the impropriety of his or
her acts indicates a lack of capacity to reform. (Platt, supra, 48 Cal.4th CJP

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57 Cal.4th CJP Supp. 1 [July 2013]

Supp. at p. 248; see Fletcher v. Commission on Judicial Performance (1998)


19 Cal.4th 865, 920921 [81 Cal.Rptr.2d 58, 968 P.2d 958]; Kloepfer v.
Commission on Judicial Performance (1989) 49 Cal.3d 826, 866 [264
Cal.Rptr. 100, 782 P.2d 239].) The fact that Judge Mills was advised by the
commission in February 2011 that it is improper to use his judicial position to
bypass normal procedures for the benefit of a family member makes his
failure to recognize the impropriety of his actions in October 2011 all the
more troubling. (See Inquiry Concerning Van Voorhis (2003) 48 Cal.4th CJP
Supp. 257, 301302; Doan v. Commission on Judicial Performance (1995) 11
Cal.4th 294, 339340 [45 Cal.Rptr.2d 254, 902 P.2d 272]; McCullough v.
Commission on Judicial Performance (1989) 49 Cal.3d 186, 199 [260
Cal.Rptr. 557, 776 P.2d 259] [failure to respond to prior discipline evidences
a lack of regard for the Commission, [the Supreme Court] and his obligations
as a judge].)
Judge Millss misconduct is further aggravated by the fact that Ms. Sims
and Ms. Peters were his subordinates. The judges conduct and his subsequent response to the charges evidence a lack of sensitivity to the pressure he
implicitly placed on them by virtue of his judicial position. (See Sarmiento,
supra, No. 191 at p. 7.)
We have already discussed the adverse impact of Judge Millss conduct on
public confidence in the impartiality of the judicial system, which is another
important factor in our assessment of the appropriate sanction. In imposing
public discipline, we assure the public that using the influence of judicial
office to obtain an advantage, no matter how slight, in a legal matter
involving a family member or friend is impermissible.
In determining to issue a public admonishment, rather than a higher level
of discipline, we take into consideration that Judge Mills did not overtly
pressure Ms. Sims or Ms. Peters to facilitate the meeting in chambers and
told Ms. Peters to do what she wanted or words to that effect, and the
requested disposition was not more lenient than would likely have occurred if
the attorney had appeared in open court on behalf of the judges son.12 We
also consider in mitigation the masters finding that Judge Mills was acting as
12

Judge Salvador Sarmiento was censured pursuant to a stipulation in 2012 for communications with a commissioner in nonpublic areas of the courthouse concerning his wifes traffic
ticket. While there are factual similarities with the present case, Judge Sarmientos conduct
was more aggravated. He approached the commissioner in the courthouse hallway and
followed her into her chambers where he asked her to address his wifes $300 penalty
assessment fee and left the ticket on the commissioners desk. The judge admitted he was
seeking to have the commissioner vacate the finesomething that would not necessarily occur
through proper channels. Moreover, he returned to the commissioners chambers later that day
and told her nothing had been done on the ticket. The commissioner told the judge she would
give him a trial date, but did not vacate the fee.

Page 28

2016 Public Misconduct Report


Hon. Bruce Clayton Mills
Contra Costa County Superior Court
Code of Judicial Ethics Violations
California Commission on Judicial Performance
Investigation Prosecution Punishment
Contra Costa County Judge Bruce Mills
Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance

Count 4 of 5
2011 Advisory Letter Documentation

Page 29

STATE OF CALIFORNIA
COMMISSION ON JUDICIAL PERFORMANCE

2011 ANNUAL REPORT

455 Golden Gate Avenue, Suite 14400


San Francisco, California 94102
(415) 557-1200
http://cjp.ca.gov

Page 30

IV.
CASE SUMMARIES

17. At sentencing after a negotiated plea,


the judge failed to afford the crime victim the
opportunity to present a victim impact statement
in person in open court, as required by law.
The judge had read a victim impact statement
submitted earlier.
18. Ajudge with administrative responsibilities
adopted procedures for filings by pro per litigants
that raised an appearance that the litigants received
unequal treatment based on their indigency or lack
of counsel.
19. While presiding over a misdemeanor
probation violation, the judge refused the
defendant's attorney's request to be heard on
the issue of bail, denied the defendant bail and
remanded the defendant into custody.
2 0 . A judge to whom a case had been assigned
for all purposes told the attorneys that their case
was not going to trial because the judge settles
every case, which appeared coercive and intended
to deny their clients' right to trial.
Improper Political Activities
"A judge or judicial candidate shall refrain
from inappropriate political activity." {Canon 5.)
2 1 . While a judge was a candidate for
judicial office, the judge's campaign materials
created a false impression about the judge's prior
judicial experience.

2 3 . A judge met with an officer seeking


issuance of a warrant on a weekend when the judge
was serving as duty judge. After the judge signed
the warrant, the judge's teenage child expressed
interest in accompanying the officer when the
warrant was executed. The judge ascertained that
it was acceptable to the officer for the judge's child
to accompany the officer. The judge's child was
thereby able to bypass the ordinary process for
going on a police ride-along.
O n - B e n c h Abuse of Authority
Acts in excess of judicial authority may
constitute misconduct, particularly where a judge
deliberately disregards the requirements of fairness
and due process. (See Gonzalez v. Commission on
judicial Performance (1983) 33 C a l J d 359, 371,
374; Cannon v. Commission on]udicial Qualifications
(1975) H C a l . 3 d 6 7 8 . 6 9 4 . )
24- A judge occasionally spoke in a language
other than English during court proceedings,
including while giving criminal defendants group
advisements of their constitutional tights. In a
civil case, the judge made a ruling based only
on speculation that a litigant had not fulfilled a
certain procedural requirement, and misstated the
law in articulating a different basis for the ruling,
thus creating a misleading record.
More T h a n One Type of Misconduct
Some cases involved more than one type
of misconduct.

Off-Bench Improprieties
A judge is required to respect and comply with
the law and to act at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary. The prohibition against
behaving with impropriety or the appearance
of impropriety applies to both the professional
and personal conduct of a judge. (Canon 2A and
Commentary.)
22. A judge used judicial stationery to write to
a court in another county regarding payment of the
judge's traffic ticket because the judge was having
trouble getting the court clerk to acknowledge that
payment had been made.

2 5 . A judge made unduly harsh and disparaging


remarks to a pro per criminal defendant during
a pretrial hearing. The judge also denied the
defendant's motion to disqualify the judge for
cause.
26. A judge engaged in ex parte communica
tions with a witness. The judge improperly inferred
the consent of the pro per parties from the fact
that they did not object when the judge stated the
intention to telephone the witness. When one
party continued to express concern about the
judge's ruling, the judge threatened to make an
adverse ruling and used unduly harsh language.

PAGE X,

2011 ANNUAL REPORT

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CJBNS.ORG

CJP Supp. 15

57 Cal.4th CJP Supp. 1 [July 2013]

III
DISCIPLINE
(8) In determining the appropriate level of discipline, we consider several
factors, including the following: number of incidents of misconduct, the
seriousness of the misconduct, whether the judge has prior discipline, whether
the judge acknowledges and appreciates the impropriety of his actions, the
impact of the misconduct on the judicial system, and the judges reputation
for administering his or her duties in a fair, impartial, and dignified manner.
(Policy Declarations of Com. on Jud. Performance, policy 7.1 [nonexclusive
factors relevant to sanctions]; e.g., Ross, supra, 49 Cal.4th CJP Supp. at
p. 138.)
Weighing heavily in aggravation is Judge Millss history of prior discipline. This is not the first time Judge Mills has been disciplined for using his
judicial position to bypass proper channels on behalf of his son. In 2011, he
received an advisory letter for, after signing a search warrant, allowing his
son to accompany a police officer in executing the warrant without going
through the ordinary application process for going on a ride-along.
In addition, Judge Mills received an advisory letter in 2008 for improperly
conditioning a defendants release in a misdemeanor probation revocation
proceeding on posting bail for the improper purpose of collecting restitution.
In 2006, he was publicly admonished for engaging in improper ex parte
discussions and for a pattern of making discourteous, sarcastic, and demeaning comments to attorneys and litigants appearing before him. And, in 2001,
he received a private admonishment for remarks suggesting a lack of
impartiality and attempting to obtain a guilty plea from a defendant despite
statements from the defendant indicating he wanted counsel.
Another aggravating factor is Judge Millss failure to acknowledge or
appreciate the impropriety of his actions. At the hearing before the special
masters and in his briefs to the commission, he insisted that he did nothing
improper. During his oral argument before the commission, Judge Mills
stated that, in hindsight, he realizes he should not have met with the pro
tempore judge in chambers. However, he immediately followed this acknowledgement with excuses and justifications for his conduct. The judge also
deflected questions about the public perception of his actions by questioning
Ms. Simss credibility and recollection of the time events occurred. His
presentation before the commission leaves us with no confidence that he
appreciates the impropriety of his actions.
(9) A judges failure to appreciate or admit to the impropriety of his or
her acts indicates a lack of capacity to reform. (Platt, supra, 48 Cal.4th CJP

Page 32

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CJP Supp. 16

57 Cal.4th CJP Supp. 1 [July 2013]

Supp. at p. 248; see Fletcher v. Commission on Judicial Performance (1998)


19 Cal.4th 865, 920921 [81 Cal.Rptr.2d 58, 968 P.2d 958]; Kloepfer v.
Commission on Judicial Performance (1989) 49 Cal.3d 826, 866 [264
Cal.Rptr. 100, 782 P.2d 239].) The fact that Judge Mills was advised by the
commission in February 2011 that it is improper to use his judicial position to
bypass normal procedures for the benefit of a family member makes his
failure to recognize the impropriety of his actions in October 2011 all the
more troubling. (See Inquiry Concerning Van Voorhis (2003) 48 Cal.4th CJP
Supp. 257, 301302; Doan v. Commission on Judicial Performance (1995) 11
Cal.4th 294, 339340 [45 Cal.Rptr.2d 254, 902 P.2d 272]; McCullough v.
Commission on Judicial Performance (1989) 49 Cal.3d 186, 199 [260
Cal.Rptr. 557, 776 P.2d 259] [failure to respond to prior discipline evidences
a lack of regard for the Commission, [the Supreme Court] and his obligations
as a judge].)
Judge Millss misconduct is further aggravated by the fact that Ms. Sims
and Ms. Peters were his subordinates. The judges conduct and his subsequent response to the charges evidence a lack of sensitivity to the pressure he
implicitly placed on them by virtue of his judicial position. (See Sarmiento,
supra, No. 191 at p. 7.)
We have already discussed the adverse impact of Judge Millss conduct on
public confidence in the impartiality of the judicial system, which is another
important factor in our assessment of the appropriate sanction. In imposing
public discipline, we assure the public that using the influence of judicial
office to obtain an advantage, no matter how slight, in a legal matter
involving a family member or friend is impermissible.
In determining to issue a public admonishment, rather than a higher level
of discipline, we take into consideration that Judge Mills did not overtly
pressure Ms. Sims or Ms. Peters to facilitate the meeting in chambers and
told Ms. Peters to do what she wanted or words to that effect, and the
requested disposition was not more lenient than would likely have occurred if
the attorney had appeared in open court on behalf of the judges son.12 We
also consider in mitigation the masters finding that Judge Mills was acting as
12

Judge Salvador Sarmiento was censured pursuant to a stipulation in 2012 for communications with a commissioner in nonpublic areas of the courthouse concerning his wifes traffic
ticket. While there are factual similarities with the present case, Judge Sarmientos conduct
was more aggravated. He approached the commissioner in the courthouse hallway and
followed her into her chambers where he asked her to address his wifes $300 penalty
assessment fee and left the ticket on the commissioners desk. The judge admitted he was
seeking to have the commissioner vacate the finesomething that would not necessarily occur
through proper channels. Moreover, he returned to the commissioners chambers later that day
and told her nothing had been done on the ticket. The commissioner told the judge she would
give him a trial date, but did not vacate the fee.

Page 33

2016 Public Misconduct Report


Hon. Bruce Clayton Mills
Contra Costa County Superior Court
Code of Judicial Ethics Violations
California Commission on Judicial Performance
Investigation Prosecution Punishment
Contra Costa County Judge Bruce Mills
Five Instances of Judicial Misconduct
Verified by the Commission on Judicial Performance

Count 5 of 5
2013 Public Admonishment Documentation

Page 34

INQUIRY CONCERNING MILLS

CJP Supp. 1

57 Cal.4th CJP Supp. 1 [July 2013]

[No. 192. July 30, 2013.]


INQUIRY CONCERNING JUDGE BRUCE CLAYTON MILLS

SUMMARY
A disciplinary matter was commenced concerning a superior court judge.
The Commission on Judicial Performance publicly admonished the judge.
The commission concluded that the judge engaged in prejudicial misconduct
and violated Cal. Code Jud. Ethics, canons 1, 2, 2A and 2B(2). By communicating his desired resolution of his sons case to the courtroom clerk of the
assigned pro tempore judge and participating in a favorable disposition of
the matter with the pro tempore judge through channels not available to the
public, the judge created an appearance of impropriety that undermined
public confidence in the impartiality and integrity of the judiciary. Moreover,
the fact that both the courtroom clerk and the pro tempore judge were
subordinate to the judge heightened the appearance and reality of impropriety.
In aggravation, the judge had been previously disciplined for using his
judicial position to bypass proper channels on behalf of his son. In mitigation,
the commission took into consideration that the judge did not overtly pressure
the courtroom clerk or the pro tempore judge to facilitate the meeting in
chambers and told the pro tempore judge to do what she wanted or words to
that effect, and the requested disposition was not more lenient than would
likely have occurred if the attorney had appeared in open court on behalf of
the judges son. The commission also considered in mitigation the finding
that the judge was acting as a concerned parent and the testimony of a
number of character witnesses that the judge was hardworking, conscientious,
and fair. (Opinion by Lawrence J. Simi, Chairperson.)

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57 Cal.4th CJP Supp. 1 [July 2013]

HEADNOTES
(1) Judges 6DisciplinePrejudicial MisconductNonpublic Areas
of CourthouseOutside Normal ProcessAppearance of Impropriety.A superior court judge engaged in prejudicial misconduct and
violated Cal. Code Jud. Ethics, canons 1, 2, 2A and 2B(2). By allowing
discussion and resolution of his sons case to take place in nonpublic
areas of the courthouse and outside the normal process, the judge created
an appearance of impropriety that undermined public confidence in the
impartiality and integrity of the judiciary.
[Cal. Forms of Pleading and Practice (2013) ch. 317, Judges, 317.85.]
(2) Judges 6DisciplineBurden of Proving ChargesClear and Convincing Evidence.The examiner for the Commission on Judicial Performance has the burden of proving the charges against a judge by clear
and convincing evidence. Evidence of a charge is clear and convincing
so long as there is a high probability that the charge is true.
(3) Judges 6DisciplineSpecial MastersFactual FindingsLegal
Conclusions.While the Commission on Judicial Performance gives
special weight and deference to the factual findings of the special masters because they had the advantage of observing the demeanor of the
witnesses, legal conclusions of the masters are entitled to less deference
because the commission has expertise in evaluating judicial misconduct.
(4) Judges 6DisciplinePrejudicial Misconduct.Prejudicial misconduct is the second most serious type of judicial misconduct. Prejudicial
conduct is distinguishable from willful misconduct in that a judges acts
may constitute prejudicial conduct even if not committed in a judicial
capacity, or, if committed in a judicial capacity, not committed in bad
faith. Prejudicial conduct is either conduct which a judge undertakes in
good faith but which nevertheless would appear to an objective observer
to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office or willful misconduct out of office, i.e.,
unjudicial conduct committed in bad faith by a judge not then acting in a
judicial capacity. The provision that the conduct must be that which
brings the judicial office into disrepute does not require actual notoriety,
but only that the conduct, if known to an objective observer, would
appear to be prejudicial to public esteem for the judicial office.

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CJP Supp. 3

57 Cal.4th CJP Supp. 1 [July 2013]

The subjective intent or motivation of the judge is not a significant


factor in assessing whether prejudicial conduct has occurred under this
standard.
(5) Judges 6DisciplineImproper Action.The least serious type of
misconduct is improper action. Improper action consists of unjudicial
conduct that violates the Code of Judicial Ethics, but does not rise to the
level of prejudicial misconduct because, viewed objectively, the conduct
would not adversely affect the esteem in which the judiciary is held by
members of the public.
(6) Judges 6Judicial ConductRequirements.Cal. Code Jud. Ethics, canon 2, provides that a judge shall avoid impropriety and the
appearance of impropriety in all the judges activities. Cal. Code Jud.
Ethics, canon 1, provides that a judge is required to observe high
standards of conduct so that the integrity and independence of the
judiciary is preserved. Cal. Code Jud. Ethics, canon 2A, provides that a
judge shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary. Cal. Code Jud. Ethics,
canon 2B(2), provides that a judge shall not lend the prestige of judicial
office to advance the personal interests of the judge or others.
(7) Judges 1Solicitation of Civic or Charitable Contributions
Subordinate Judicial Officer.A judge is prohibited from seeking civic
or charitable contributions from a subordinate judicial officer or temporary judge, although such solicitation is permitted among judges
(Cal. Code Jud. Ethics, canon 4C(3)(d)(i)).
(8) Judges 6DisciplineFactors.In determining the appropriate level
of discipline, the Commission on Judicial Performance considers several
factors, including the following: number of incidents of misconduct, the
seriousness of the misconduct, whether the judge has prior discipline,
whether the judge acknowledges and appreciates the impropriety of his
actions, the impact of the misconduct on the judicial system, and the
judges reputation for administering his or her duties in a fair, impartial,
and dignified manner.
(9) Judges 6DisciplineCapacity to Reform.A judges failure to
appreciate or admit to the impropriety of his or her acts indicates a lack
of capacity to reform.

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CJBNS.ORG

INQUIRY CONCERNING MILLS

CJP Supp. 4

57 Cal.4th CJP Supp. 1 [July 2013]

OPINION
SIMI, Chairperson.
I
INTRODUCTION AND SUMMARY
This disciplinary matter concerns Judge Bruce Clayton Mills, a judge of
the Contra Costa County Superior Court. The commission commenced this
inquiry with the filing of its Notice of Formal Proceedings (Notice) on
November 1, 2012. The Notice charges Judge Mills in a single count with
engaging in judicial misconduct through his communications with a courtroom clerk and a pro tempore judge in nonpublic areas of the courthouse
concerning his sons scheduled court appearance on an order to show cause
for failure to complete volunteer work ordered in a tobacco infraction case.
The Notice alleges that the judge sought and received credit for time his son
spent in a residential program in lieu of the required community service.
The Supreme Court appointed three special masters who held an evidentiary hearing and reported to the commission. The masters are the Honorable
Dennis M. Perluss, Associate Justice of the Court of Appeal, Second Appellate District; the Honorable Gail A. Andler, Judge of the Orange County
Superior Court; and the Honorable Vincent J. ONeill, Jr., Judge of the
Ventura County Superior Court. Judge Mills is represented by James A.
Murphy, Esq., of Murphy, Pearson, Bradley & Feeney in San Francisco,
California. The examiners for the commission are Gary W. Schons, Esq., and
Valerie Marchant, Esq.
A three-day evidentiary hearing was held before the special masters
commencing February 19, 2013, followed by oral argument on April 8,
2013.1 The masters report to the commission, containing their findings of
fact and conclusions of law, was filed on April 25, 2013. Oral argument
before the commission was heard on June 26, 2013.
(1) The masters found that Judge Mills communicated his desired disposition of his sons case and showed supporting documents to the courtroom
clerk in an area not accessible to the public and participated in a favorable
1

On January 29, 2013, Judge Mills filed a motion with the special masters to dismiss these
proceedings, contending that the allegations as charged did not constitute judicial misconduct.
The special masters declined to rule on the motion as beyond their purview. (See Rules of
Com. on Jud. Performance, rules 119(a), 121(b).)

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57 Cal.4th CJP Supp. 1 [July 2013]

disposition of the matter in chambers with the pro tempore judge.2 We adopt
the factual findings of the masters. Based on these factual findings, we reach
our own independent legal conclusion that Judge Mills engaged in prejudicial
misconduct, which is unjudicial conduct prejudicial to public esteem for the
judiciary. By allowing discussion and resolution of his sons case to take
place in nonpublic areas of the courthouse and outside the normal process,
Judge Mills created an appearance of impropriety that undermines public
confidence in the impartiality and integrity of the judiciary. Moreover, the
fact that both the courtroom clerk and the pro tempore judge were subordinate to the judge heightens the appearance and reality of impropriety.
For reasons discussed in this decision, we conclude that the purpose of
judicial disciplineprotection of the public, enforcement of rigorous standards of judicial conduct, and maintenance of public confidence in the
integrity and impartiality of the judiciarycan best be accomplished through
the imposition of a public admonishment.
II
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Findings of Fact
(2) The examiner has the burden of proving the charges by clear and
convincing evidence. (Broadman v. Commission on Judicial Performance (1998)
18 Cal.4th 1079, 1090 [77 Cal.Rptr.2d 408, 959 P.2d 715] (Broadman).)
Evidence of a charge is clear and convincing so long as there is a high
probability that the charge is true. [Citations.] (Ibid.)
Factual findings of the masters are entitled to great weight because the
masters have the advantage of observing the demeanor of the witnesses.
(Broadman, supra, 18 Cal.4th at p. 1090; see Inquiry Concerning Freedman
(2007) 49 Cal.4th CJP Supp. 223, 232 (Freedman).) We adopt the factual
findings of the masters, which we have determined are supported by clear and
convincing evidence.
The evidence presented at the hearing before the special masters concerned, for the most part, Judge Millss conduct surrounding his sons
scheduled court appearance at 1:30 p.m. on October 4, 2011, in Department
59 of the Walnut Creek courthouse to show proof of completion of volunteer
2
A pro tempore judge is an attorney who serves as a temporary judge once, sporadically, or
regularly on a part-time basis by appointment of the superior court. (See Cal. Code Jud. Ethics,
Terminology.)

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CJP Supp. 6

57 Cal.4th CJP Supp. 1 [July 2013]

work in a tobacco infraction case. The son had not completed the volunteer
work because he enrolled in a residential treatment program out of state
shortly after his guilty plea. The disputed evidence involved Judge Millss
communications before the scheduled hearing with Jane Sims, the clerk in
Department 59, and Helen Peters, a pro tempore judge who was scheduled to
preside in Department 59 that day. The conflicts in the testimony primarily
concerned the number, location, and substance of the judges conversations
with Ms. Sims. Most of the disputes in the evidence were resolved by the
masters in accord with Judge Millss testimony based on the masters
observation of the manner in which the witnesses testified and the extent to
which the testimony was consistent or inconsistent with other evidence.
Judge Mills has no objections to the factual findings of the masters. The
examiner notes concern as to one factual finding relevant to the masters
credibility determination as discussed later in this decision.
In deference to the masters evaluation of the demeanor of the witnesses
and based on our own independent review of the record, we adopt the
following factual findings.
On March 2, 2011, Judge Mills appeared with his minor son in Department
59 for his sons arraignment on a charge of possession of tobacco by a minor.
Former Commissioner Joel Golub was assigned to Department 59. For more
than a decade, Judge Mills and his ex-wife Judge Cheryl Mills3 had a strained
relationship with Commissioner Golub. Shortly after taking office, Judge Mills
recommended that Commissioner Golub be replaced. In 2002, Commissioner
Golub unsuccessfully ran against Cheryl Mills for judicial office. During the
campaign, Commissioner Golub filed a lawsuit against Cheryl Mills that was
ultimately dismissed. Cheryl Mills subsequently filed a lawsuit against a
person aligned with Commissioner Golubs campaign. The masters aptly
described the relationship between Judge Mills and Commissioner Golub as
being marked by strong, mutual antipathy.
Judge Mills expected Commissioner Golub to recuse himself under Code of
Civil Procedure section 170.1 from hearing a matter concerning the son of
Judge Mills and Judge Cheryl Mills. However, the commissioner did not
recuse himself and Judge Mills did not move to disqualify him.4 Instead,
3

We refer to respondent Judge Bruce Clayton Mills as Judge Mills throughout this decision.
We refer to his former wife, Judge Cheryl Mills, by both her first and last names.
4
See Rothman, California Judicial Conduct Handbook (3d ed. 2007) section 7.52, page 358
(Where the party, victim or defendant is a fellow judge or a spouse of a fellow judge, there
would at least be a perception of bias, or a reasonable doubt that any judge on the same court
would be able to maintain impartiality.); California Judges Association, Formal Ethics
Opinion No. 56 (2006) Ethical Considerations When a Judge or a Member of a Judges Family

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Judge Mills asked the commissioner to clarify whether the offense was a
misdemeanor or infraction, and the commissioner explained that it was an
infraction and accepted the sons plea to the infraction. The son was ordered
to complete 20 hours of volunteer work with the American Lung Association
or the American Cancer Society and to submit proof of completion to the
court.
Shortly after the March court appearance, the son entered a 10-month
out-of-state residential rehabilitation program. Consequently, he did not complete the required volunteer work. In mid-September 2011, an order to show
cause (OSC) why proof of community service had not been submitted was
issued by the court, setting the matter for 1:30 p.m. on October 4, 2011, in
Department 59. The son was still in the out-of-state program. Judge Mills and
Judge Cheryl Mills discussed the OSC and agreed an attorney should appear
for their son because Commissioner Golub would be handling the matter.
Judge Mills asked Attorney Elle Falahat, a close friend, to appear on his sons
behalf and asked her to request that the community service requirement be
satisfied through performance in the rehabilitation program. The judge explained that the therapeutic goal of volunteer work at the American Cancer
Society or American Lung Association was served through his sons participation in the rehabilitation program that included counseling related to
smoking.
On the morning of the October 4, 2011 scheduled hearing, Judge Mills and
Ms. Falahat spoke on the phone several times concerning her anticipated
court appearance at 1:30 p.m. Judge Mills asked her to arrive early so he
could provide her with documents concerning his sons participation in the
rehabilitation program. At 10:21 a.m. Ms. Falahat called Judge Mills on his
cell phone and told him she could not appear at the hearing because of an
emergency. She told Judge Mills, We have to continue it obviously.
According to Ms. Falahat, Judge Mills was in a state of panic and
responded, Let me see how I can handle this. (Judge Mills testified he told
Ms. Falahat, Let me think about what I want to do, and then Ill let you
know. He subsequently testified he said to her, Well, Ill figure out what
were going to do.) Judge Mills did not ask Ms. Falahat to call the clerks
office to obtain a continuance and Ms. Falahat did not offer to do so.5
Has Been Arrested or Is Being Prosecuted for Criminal Activity, page 2 (If the arrest occurs
within the jurisdiction of the judges court, it is recommended that the judge notify the
Presiding Judge, so that the case may be assigned to a judge whose impartiality will not be
questioned.)
5
The masters found Ms. Falahats failure to offer to contact the court to seek a continuance
to be a mitigating factor on Judge Millss behalf. We do not consider this fact to be mitigating
because Judge Mills told Ms. Falahat that he would let her know once he decided how he
wanted to proceed.

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According to Judge Millss clerk, Joane Quontamatteo, the judge was upset
after Ms. Falahat informed him that she could not appear. Ms. Quontamatteo
offered to go to Department 59 and inform Ms. Sims that the attorney could
not appear and find out what needed to be done. Judge Mills told her he
would take care of it himself because it was a personal matter.
Judge Mills went downstairs to seek out Ms. Sims, the clerk in Department
59. He encountered her in the main clerks office and informed her that
neither his son nor the attorney engaged to represent him could attend the
OSC hearing that afternoon. Judge Mills responded positively when Ms. Sims
informed him that Commissioner Golub was not in that day and Helen Peters
would be presiding in Department 59. He said something along the lines of
Well, great; thats better. Ms. Sims asked, What is it on for? The judge
explained it was an order to show cause for proof of community service and
the lawyer was going to present the records from the program that [his son]
is in and ask for credit for time served for the program that hes doing in lieu
of the community service. Ms. Sims indicated that the pro tempore judge
would want to review such documents to determine if the volunteer service
obligation had been satisfied.
Judge Mills then went back to his chambers to retrieve the documents and
brought them to Ms. Sims in the administration area of the courthouse. The
documents included the parent handbook for the program and invoices for
payments to the program. Judge Mills showed the documents to Ms. Sims,
but she declined to take them.
As Judge Mills was leaving the courthouse for lunch at around noon that
day, he stopped by Ms. Simss office because he wanted to know what was
going to occur and what they wanted him to do. Ms. Sims told the judge to
come back when he returned from lunch.
Pro Tempore Judge Peters thought she arrived at the Walnut Creek
courthouse between 12:30 p.m. and 1:00 p.m. on October 4, 2011. She
testified Ms. Sims first told her Judge Millss sons case was on calendar, an
attorney would be appearing, and there was a question of whether the
attorney could be given priority on the calendar. Sometime later, Ms. Sims
came into chambers and told Ms. Peters the attorney was not available and
Judge Mills needed to know whether he could take care of the matter before
the start of his own calendar.
The windows in Department 59 chambers look directly into the judges
parking area. Ms. Peters testified that she noticed Judge Millss car arrive
shortly before the beginning of the afternoon calendar. The masters found that
Ms. Peters knew an attorney would not be appearing for Judge Millss son

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before she saw the judge arrive in the parking lot.6 The masters concluded
that this fact refutes Ms. Simss testimony that Judge Mills initially told her
an attorney would appear and did not disclose that Ms. Falahat had a conflict
until after he returned from lunch. The examiner urges the commission to
reject this finding because Ms. Peterss observation was based on a flash of
a car outside the chambers window7 and because such a scenario is inconsistent with Ms. Simss testimony on this issue.
We believe the evidence taken in its totality supports the masters finding
that Ms. Peters knew an attorney would not be appearing when she saw Judge
Mills enter the parking lot. On cross-examination, Ms. Peters testified, I
knew before Judge Mills[s] vehicle flashed, if thats what it was, that the
lawyer was not going to be appearing. I knew that before he had entered the
building that day. And, two other times in her testimony Ms. Peters stated or
suggested that she knew the lawyer would not be appearing before she saw
the judge enter the parking lot.8
Court security records reflect that Judge Mills returned from lunch at
precisely 1:30:11 p.m. He immediately went to Ms. Simss office. Ms. Sims
asked the judge to wait while she went to confer with Ms. Peters. In a matter
of seconds, Ms. Sims returned and asked Judge Mills to come and talk to
Ms. Peters.
Judge Mills and Ms. Sims entered the chambers of Department 59 where
Ms. Peters was sitting behind the commissioners desk. Judge Mills and
Ms. Peters greeted each other, and Judge Mills expressed pleasure or relief
that she was there instead of Commissioner Golub. When Ms. Peters asked
6

The masters accepted Ms. Peterss testimony that Ms. Sims initially told her an attorney
would be appearing for Judge Millss son and asked that the matter be given priority on the
calendar. However, the masters found that there was not clear and convincing evidence that
Judge Mills actually told Ms. Sims that an attorney would be appearing or asked for priority.
We have difficulty understanding why Ms. Sims would convey this information to Ms. Peters if
Judge Mills had not reported it to her. Nevertheless, we defer to the masters finding that the
examiner did not prove this allegation by clear and convincing evidence based on the masters
credibility determinations and inconsistencies and conflicts in the evidence with respect to
when Judge Mills allegedly made this statement to Ms. Sims.
7
When asked on direct examination if she saw Judge Mills park his car, Ms. Peters replied,
I wasnt really watching. I was just in chambers and its a view directly outside my window.
So I didnt look and say, Oh, theres Judge Mills; he [sic] parking. I just looked up and saw a
flash . . . . And I said, Oh, thats Judge Mills.
8
Q. [Mr. Murphy] So before you saw Judge Mills pull into the parking spot and get out of
his car, you knew that the lawyer now could not attend the hearing; right? [] A. [Ms. Peters] I
believe so, yes. Ms. Peters later testified that when she saw Judge Mills pull into the parking
lot, It was my expectation that he would be entering my chambers in order to dispose of [his
sons case], yes. She also testified that she knew a lawyer would not be appearing before
Ms. Sims came into chambers to tell her the judge had returned from lunch.

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what was going on in the case, Judge Mills told her the matter was on
calendar for an OSC regarding failure to complete required volunteer work.
The judge explained that his son was in an out-of-state program. According to
Judge Mills, he then told Ms. Peters his attorney intended to ask for credit
for time served in the program. According to Ms. Peters, Judge Mills
himself asked for that disposition when he entered the chambers. The masters
did not expressly resolve this conflict in the testimony because the practical
effect and legal consequences are no different whether Judge Mills himself
asked for the disposition or told Ms. Peters the lawyer he engaged to
represent [his son] had intended to ask for that disposition. We agree.
Judge Mills said something to Ms. Peters like, [D]o what you want.
Ms. Peters asked Judge Mills about the nature of the rehabilitation program
but did not receive or review any documents. Judge Mills explained that his
son was participating in outreach in the community while in the program.
Ms. Peters concluded that participation in the program would qualify for the
community service requirement. As they were leaving chambers, each to
begin their own court calendars, Ms. Peters gave Judge Mills a hug.
In assessing her own actions, Ms. Peters testified, I felt that I made the
right decision in the wrong place. The resulting disposition was within her
discretion and in all likelihood would have been the same if an attorney had
appeared in open court and made the request. When asked if she felt
pressured to grant Judge Millss request because he was a judge, Ms. Peters
replied, Yeah. I did.
Ms. Peters wrote credit for time served, accepted on the judges notes
that Ms. Sims had retrieved from her office and brought into chambers.
Ms. Sims made a similar notation on the clerks docket and minutes and also
filled in DAD on the line for appearances. Judge Mills did not sign the
stipulation for a pro tempore judge to hear the matter until the following day,
October 5, 2011. However, Ms. Peterss signature on the stipulation is dated
October 4, 2011. Although all proceedings in Department 59 are recorded,
neither party submitted any evidence of this matter having been recorded.
When Commissioner Golub returned to court on October 6, 2011,
Ms. Sims told him about how Judge Millss sons case was handled. The
commissioner told Ms. Sims to contact the supervising judge at the Walnut
Creek courthouse, which she did.
B. Conclusions of Law
(3) While we give special weight and deference to the factual findings of
the masters because they had the advantage of observing the demeanor of the

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witnesses, legal conclusions of the masters are entitled to less deference


because the commission has expertise in evaluating judicial misconduct.
(Broadman, supra, 18 Cal.4th at p. 1090; see Freedman, supra, 49 Cal.4th CJP
Supp. at p. 232.) For reasons explained below, we diverge from the masters in
our legal conclusions.
There are three types of judicial misconduct: willful misconduct, prejudicial misconduct and improper action. Only the latter two are pertinent in this
case.9
(4) Prejudicial misconduct is the second most serious type of judicial
misconduct. Prejudicial conduct is distinguishable from willful misconduct
in that a judges acts may constitute prejudicial conduct even if not committed in a judicial capacity, or, if committed in a judicial capacity, not
committed in bad faith. Prejudicial conduct is either conduct which a judge
undertakes in good faith but which nevertheless would appear to an objective
observer to be not only unjudicial conduct but conduct prejudicial to public
esteem for the judicial office [citation] or willful misconduct out of office,
i.e., unjudicial conduct committed in bad faith by a judge not then acting in a
judicial capacity. [citation]. [Citation.] (Broadman, supra, 18 Cal.4th at
pp. 10921093.) The provision that the conduct must be that which brings
the judicial office into disrepute does not require actual notoriety, but only
that the conduct, if known to an objective observer, would appear to be
prejudicial to public esteem for the judicial office. [Citation.] (Adams v.
Commission on Judicial Performance (1995) 10 Cal.4th 866, 878 [42
Cal.Rptr.2d 606, 897 P.2d 544] (Adams).) The subjective intent or motivation of the judge is not a significant factor in assessing whether prejudicial
conduct has occurred under this standard. [Citation.] (Ibid.)
(5) The least serious type of misconduct is improper action. Improper
action consists of unjudicial conduct that violates the Code of Judicial Ethics,
but does not rise to the level of prejudicial misconduct because, viewed
objectively, the conduct would not adversely affect the esteem in which the
judiciary is held by members of the public. (Inquiry Concerning Ross (2005)
49 Cal.4th CJP Supp. 79, 89 (Ross); Adams, supra, 10 Cal.4th at
pp. 897899.)
The masters concluded that by discussing the case with Ms. Peters outside
the courtroom and participating in a favorable disposition of the matter in
9
Willful misconduct, the most serious type of judicial misconduct, is defined by the
Supreme Court as unjudicial conduct committed in bad faith by a judge acting in his or her
judicial capacity. (Broadman, supra, 18 Cal.4th at p. 1091.) Although the Notice charges Judge
Mills with willful misconduct, the examiner did not argue before the masters or the commission that the judge engaged in willful misconduct.

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chambers, the judge created an appearance of impropriety in violation of


canon 2 of the California Code of Judicial Ethics and engaged in improper
action, but not prejudicial misconduct. Further, the masters concluded the
judges communications with Ms. Sims did not constitute misconduct.
(6) The examiner contends that Judge Mills engaged in prejudicial
misconduct by meeting with Ms. Peters and in his interactions with Ms. Sims.
In addition to violating California Code of Judicial Ethics, canon 2 (a judge
shall avoid impropriety and the appearance of impropriety in all the judges
activities), the examiner contends that Judge Mills violated California Code of
Judicial Ethics, canons 1 (a judge is required to observe high standards of
conduct so that the integrity and independence of the judiciary is preserved),10 2A (a judge shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary), and 2B(2) (a
judge shall not lend the prestige of judicial office to advance the personal
interests of the judge or others).11
Judge Mills urges the commission to reject the masters legal conclusion
that he engaged in misconduct. He maintains in his written brief to the
commission that [t]here was absolutely nothing improper about his conduct
and that he acted as any concerned parent would in his situation and used
the proper channels available to him after he was notified that his sons
attorney could not make the 1:30 [p.m.] appearance.
We conclude that Judge Mills engaged in prejudicial misconduct by conveying his desired disposition of his sons case to Ms. Sims and Ms. Peters
through channels not available to the public. His conduct falls within the
category of prejudicial misconduct arising out of conduct, which, even if not
done in bad faith, would appear to an objective observer to be conduct
prejudicial to public esteem for the judicial office. (Broadman, supra, 18
Cal.4th at p. 1092; Inquiry Concerning Hall (2006) 49 Cal.4th CJP Supp. 146,
154.) Further, through his communications with Ms. Sims and Ms. Peters,
Judge Mills used the prestige of his judicial office to influence the disposition
of his sons case in violation of canon 2B(2), and created an appearance of
impropriety and compromised the integrity and impartiality of the judiciary in
violation of canons 1, 2, and 2A. (See Inquiry Concerning Platt (2002) 48
10
The California Code of Judicial Ethics was amended effective January 1, 2013. Canon 1
was amended to add the word impartial, so that it now reads, An independent, impartial,
and honorable judiciary is indispensable to justice in our society. The amendments are not
applicable in this case because they were not in effect at the time of the charged conduct.
11
The Notice also charges Judge Mills with a violation of canon 3B(7), which prohibits a
judge from engaging in or considering ex parte communications. The masters concluded Judge
Mills did not violate this canon because no party other than his son was involved in the
hearing, and the evidence established that the district attorneys office has a policy of not
appearing on the calendar at issue in this case. The examiner does not object to this conclusion.
We adopt the conclusion of the masters.

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Cal.4th CJP Supp. 227, 244246 (Platt); Censure of Judge Sarmiento (2012)
No. 191 at p. 6 (Sarmiento).)
When Judge Mills learned the attorney could not appear, he could properly
have asked the attorney to seek a continuance, appeared himself at the
scheduled hearing, or called the clerk to ask for another date. These are all
courses of action available to members of the public faced with a similar
situation. Instead, he went beyond what was necessary to inform Ms. Sims of
the status of the case and bypassed normal procedureshe approached
Ms. Sims in an area not accessible to the public, told her not just that his
attorney could not appear but also of his desired resolution, and showed her
documents in support of his request. By so doing, he created the appearance
that he was using Ms. Sims as a conduit to the assigned judicial officer on
behalf of his family member. He also discussed the matter with Ms. Peters in
her chambers and off the record before the start of the afternoon calendar.
The masters summarized Judge Millss actions accordingly: Although
aware he was about to enter an ethical minefield, he elected not to follow the
safest path and simply notify the clerks office of the situation and request a
continuance. The path he chose created the appearance that he obtained
special access to the court clerk and the pro tempore judge and was able to
bypass ordinary procedures by virtue of his position as a judge to the benefit
of his son and his own schedule. The case was heard before the start of the
calendar to accommodate Judge Millss need to start his own court calendar
on time. When asked to describe the judges demeanor, Ms. Peters replied,
We were in a hurry. It felt like it was a stop along the way, an inconvenience, something to be done quickly and be finished. Members of the
public are required to take time off of work to come to court and do not have
the advantage of having their case called before the start of the calendar and
off the record to accommodate their work schedule and do not have special
access to the judges clerk in nonpublic areas of the courthouse to provide
documentation and arguments in support of their desired disposition. Further,
Judge Mills was allowed to discuss the sensitive nature of his sons situation
in chambers without going through the same process expected of members of
the public who request that their matter be heard in closed session. The
commission has condemned conduct that creates the appearance of a twotrack system of justiceone for those with special access to the judge, and
the other for everyone else. The nub of the problem is the appearance or
reality that Lady Justice is not blindfolded. (Inquiry Concerning Wasilenko
(2005) 49 Cal.4th CJP Supp. 26, 51.)
The masters concluded that an objective observer aware of all the facts
would not consider Judge Millss actions prejudicial to public esteem for the
judicial office because the difference between what actually occurred and

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what Judge Mills could properly have done is slight and because the same
result would likely have occurred had the judge appeared in court. Whether
or not his son received an unusually lenient disposition as a result of Judge
Millss actions is not a determinative factor in our analysis of the level of
misconduct. Regardless of the final disposition, judges must be sensitive to
the appearance of impropriety inherent in discussing a family members court
case with the judicial officer presiding over the matter behind closed doors
and off the record. It leads to suspicions of favoritism and backdoor deals for
the select few with connections to the judicial officer hearing the matter.
(7) The fact that Ms. Sims and Ms. Peters are subordinate to Judge Mills
magnifies the appearance of impropriety and further undermines public
confidence in the integrity of the judiciary. Judge Mills maintains he did not
take advantage of his judicial position because he was acting in the role of a
father, not a judge, and emphasizes that he told Ms. Peters to do what she
wanted. However, Ms. Peters testified that she felt pressured to grant Judge
Millss request because he was a judge. It is not surprising that a person in a
subordinate position to the judge would feel pressure to comply with a
judges request. For this reason, the canons prohibit a judge from seeking
civic or charitable contributions from a subordinate judicial officer or temporary judge, while permitting such solicitation among judges. (Cal. Code Jud.
Ethics, canon 4C(3)(d)(i); see Rothman, Cal. Judicial Conduct Handbook,
supra, 10.43, p. 557.) As a judge for 16 years, the ethical boundaries
between judges and their subordinates should have been apparent to Judge
Mills.
In Platt, supra, 48 Cal.4th CJP Supp. at pp. 244246, the judge called a
court commissioner, asked her questions about a traffic ticket issued to the
judges godfather, and conveyed information that his godfather was active in
the community. The commission noted that even though the facts showed
Judge Platt did not ask that any action be taken and that the commissioner
was not influenced by the judges call, it did not mean the commissioner did
not perceive the call as an attempt to influence. The commission observed:
The attempt to influence is inherent in the unsolicited telephone call and the
ex parte conveyance of positive information about the offender. The judges
failure to explicitly ask the referee to do anything does not change the nature
of the communication. (Id. at p. 245.)
Judge Mills also suggests that he was simply following the directives of
Ms. Sims and Ms. Peters. However, as a judge, he was responsible for
ensuring that his sons case was handled no differently than any other matter
before the court and that he was not granted procedural shortcuts because of
his judicial position, particularly when dealing with those who are subordinate to him.

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III
DISCIPLINE
(8) In determining the appropriate level of discipline, we consider several
factors, including the following: number of incidents of misconduct, the
seriousness of the misconduct, whether the judge has prior discipline, whether
the judge acknowledges and appreciates the impropriety of his actions, the
impact of the misconduct on the judicial system, and the judges reputation
for administering his or her duties in a fair, impartial, and dignified manner.
(Policy Declarations of Com. on Jud. Performance, policy 7.1 [nonexclusive
factors relevant to sanctions]; e.g., Ross, supra, 49 Cal.4th CJP Supp. at
p. 138.)
Weighing heavily in aggravation is Judge Millss history of prior discipline. This is not the first time Judge Mills has been disciplined for using his
judicial position to bypass proper channels on behalf of his son. In 2011, he
received an advisory letter for, after signing a search warrant, allowing his
son to accompany a police officer in executing the warrant without going
through the ordinary application process for going on a ride-along.
In addition, Judge Mills received an advisory letter in 2008 for improperly
conditioning a defendants release in a misdemeanor probation revocation
proceeding on posting bail for the improper purpose of collecting restitution.
In 2006, he was publicly admonished for engaging in improper ex parte
discussions and for a pattern of making discourteous, sarcastic, and demeaning comments to attorneys and litigants appearing before him. And, in 2001,
he received a private admonishment for remarks suggesting a lack of
impartiality and attempting to obtain a guilty plea from a defendant despite
statements from the defendant indicating he wanted counsel.
Another aggravating factor is Judge Millss failure to acknowledge or
appreciate the impropriety of his actions. At the hearing before the special
masters and in his briefs to the commission, he insisted that he did nothing
improper. During his oral argument before the commission, Judge Mills
stated that, in hindsight, he realizes he should not have met with the pro
tempore judge in chambers. However, he immediately followed this acknowledgement with excuses and justifications for his conduct. The judge also
deflected questions about the public perception of his actions by questioning
Ms. Simss credibility and recollection of the time events occurred. His
presentation before the commission leaves us with no confidence that he
appreciates the impropriety of his actions.
(9) A judges failure to appreciate or admit to the impropriety of his or
her acts indicates a lack of capacity to reform. (Platt, supra, 48 Cal.4th CJP

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Supp. at p. 248; see Fletcher v. Commission on Judicial Performance (1998)


19 Cal.4th 865, 920921 [81 Cal.Rptr.2d 58, 968 P.2d 958]; Kloepfer v.
Commission on Judicial Performance (1989) 49 Cal.3d 826, 866 [264
Cal.Rptr. 100, 782 P.2d 239].) The fact that Judge Mills was advised by the
commission in February 2011 that it is improper to use his judicial position to
bypass normal procedures for the benefit of a family member makes his
failure to recognize the impropriety of his actions in October 2011 all the
more troubling. (See Inquiry Concerning Van Voorhis (2003) 48 Cal.4th CJP
Supp. 257, 301302; Doan v. Commission on Judicial Performance (1995) 11
Cal.4th 294, 339340 [45 Cal.Rptr.2d 254, 902 P.2d 272]; McCullough v.
Commission on Judicial Performance (1989) 49 Cal.3d 186, 199 [260
Cal.Rptr. 557, 776 P.2d 259] [failure to respond to prior discipline evidences
a lack of regard for the Commission, [the Supreme Court] and his obligations
as a judge].)
Judge Millss misconduct is further aggravated by the fact that Ms. Sims
and Ms. Peters were his subordinates. The judges conduct and his subsequent response to the charges evidence a lack of sensitivity to the pressure he
implicitly placed on them by virtue of his judicial position. (See Sarmiento,
supra, No. 191 at p. 7.)
We have already discussed the adverse impact of Judge Millss conduct on
public confidence in the impartiality of the judicial system, which is another
important factor in our assessment of the appropriate sanction. In imposing
public discipline, we assure the public that using the influence of judicial
office to obtain an advantage, no matter how slight, in a legal matter
involving a family member or friend is impermissible.
In determining to issue a public admonishment, rather than a higher level
of discipline, we take into consideration that Judge Mills did not overtly
pressure Ms. Sims or Ms. Peters to facilitate the meeting in chambers and
told Ms. Peters to do what she wanted or words to that effect, and the
requested disposition was not more lenient than would likely have occurred if
the attorney had appeared in open court on behalf of the judges son.12 We
also consider in mitigation the masters finding that Judge Mills was acting as
12

Judge Salvador Sarmiento was censured pursuant to a stipulation in 2012 for communications with a commissioner in nonpublic areas of the courthouse concerning his wifes traffic
ticket. While there are factual similarities with the present case, Judge Sarmientos conduct
was more aggravated. He approached the commissioner in the courthouse hallway and
followed her into her chambers where he asked her to address his wifes $300 penalty
assessment fee and left the ticket on the commissioners desk. The judge admitted he was
seeking to have the commissioner vacate the finesomething that would not necessarily occur
through proper channels. Moreover, he returned to the commissioners chambers later that day
and told her nothing had been done on the ticket. The commissioner told the judge she would
give him a trial date, but did not vacate the fee.

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a concerned parent and the testimony of a number of character witnesses that


the judge is hardworking, conscientious, and fair.13
Balancing the foregoing factors leads us to the conclusion that a public
admonishment is the appropriate sanction.
IV
ORDER
Pursuant to the provisions of article VI, section 18 of the California
Constitution, we hereby impose this public admonishment.
Commission members Mr. Lawrence J. Simi, Hon. Erica R. Yew, Ms. Mary
Lou Aranguren, Anthony P. Capozzi, Esq., Nanci E. Nishimura, Esq., Hon.
Ignazio J. Ruvolo, Mr. Richard Simpson, Ms. Maya Dillard Smith, Ms. Sandra
Talcott, and Mr. Adam N. Torres voted in favor of all of the findings and
conclusions expressed herein and in the foregoing order of a public admonishment. Commission member Hon. Thomas M. Maddock was recused.

13

The character witnesses testifying on Judge Millss behalf were a retired Contra Costa
County Superior Court judge, a Contra Costa County Superior Court commissioner, the Contra
Costa County District Attorney, five private attorneys, and one retired senior deputy district
attorney. One of the attorney witnesses was the attorney who participated in ex parte
communications with Judge Mills in the matter that resulted in the judges 2006 public
admonishment.

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