865
J>^
SUMMARY
HEADNOTES
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
CJBNS.ORG
868
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)
869
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)
CJBNS.ORG
870
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)
(11)
883
Contested Charges
1.
886
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
CJBNS.ORG
887
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.
888
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
889
The minute order for that hearing indicates: "Need visiting Judge."
890
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."
CJBNS.ORG
891
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.
895
920
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
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:
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.
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.
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
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
.
AUG 16 2016
BRANCH NAME:
RESPONDENTIDEFENDANT:loseph
James Sweeney
OTHER PARENT:
.CASE NUMBER:
013-01648
- -. .
2.
3.
CJ
Petttioner/.Plaintiff -
" . -.
W .Re$pt:mdent/Defendant
,, _
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
5.
6.
c.
W
W
W
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-\-
tQi Martillllam~
~ fsSOOJAl fUl!Mf"
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
8.
CJ
9.
1o.
CJ
11.
, . .
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.
-- ""''"'"'" "
on (date):
at (time):
14.
W To commence on (date):
on (date) :
15.
a.
b.
16. a.
b.
C:.O t\.~C.U.hu..Q...
at (time) :
"
17.
8 16/16
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
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.
...
"
. i
.~
. f'
Page2 af3
.'---'
. . PETITIONER/PLAINTIFF:
jREsPoNoENTtoEFENDANT:
l{en Evilsizor
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
th'e other party
of any change of residence, Income, or employment within 1o days of the change.
21.
22.
Cl
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) :
Other (specify):
.,, . ' ( ..
~ .;.
l.
Date:
CJ
(SIGNATURE OF CITEE)
~BSNmi"roeMs
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.''
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..
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" ~/
I
i
Date:___!_;
Check One:
Request0
I l,
11
/IC>
<'c...,....,;,\-- ~.'t'-.
( ) Grievance
t: ~ i e ~
( ) Appeal
( ) Other
'
fl'Jo/~.
."!G
-"! - -Z.Lj
Housing Assjgnment:
()() Request
To
f (.
..~
..
~ .- . .
~ ..
Date
~ec'd ~I
V ."0\
f-l&,\_,
C?_cc./\_-Q___..J
q; //.,,
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\t:,C, ?\c\ q
1 , .:}.
By: \_ i""<\ e
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Ci-J.Pf\ .r .v>. D
&
Rec'd By:
;{'-'1 I
I LP
White: To Booking
- ..
14
CJBNS.ORG
Exhibit C
15
JAMES D. MORRISON
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
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
AUG 1 6 2016
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
: "'
f' -
2.
CJ
3.
lXI
b.
' :J
Petltioner/PJaintiff
, , . ..
: J..
IXI
(5)
(6)
IXI
CJ
CJ
.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
a.
b.
c.
d.
e.
f.
6.
W
W
IX]
0
D
.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
V,o\a.~~ o-\-
~ BmffiAL fnRMf"
~a:\
Uniform Parentage-Governmental)
17
.-
Page 1 of 3
'.
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.
b.
i:::J
..
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.
14.
at (time) :
".
16. a.
b.
a.
w attorney fees in 'the total amount of$ \ q oao .00 (.-) payable to (specify name):
b.
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
.
15.
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
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"'
18
fl.":}
"' .
.';
'
'
>
CASE NUMBER;
Sweeney
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.
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
......... .
CJ
(SIGNATURE OF CITEE)
~ fmNTIAJ. FORMS"'
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."
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
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
Equal protection
PenalC.Ode(Refs &Annas)
T'\
~ .....
r'\CT-...
Due process
--!------.i.. __ .J ....1__
- -'
4019. Application of section to certain prisoners; work performance and good behavior time credit
West's Annotated Galifornia Codes
Penal Code
(Approx. 3pages)
Relroactiw application
Preemption
Legislative intent
Proposed Legislation
Purpose
Actual cus tody
Presentence
Effective:January1,2015
custody
Nonpenal institutions
Drug treatment programs
Parole
Probation
-- ""~ ' ~-
..
- - --- -- -Currentness
Electronic monitoring
Weekend sentencing
Private work program
Discretion of court
Mminlstrative determination
-- - -- --
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
22
Exhibit D
23
r".VV..:1fUU"t
0812512016 10:45
0811712016 16:30
P.0021003
p, 2
No. 0989
,'
PitmONERIPWNTlf'l't
.er
Zor
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.. .
013-0.1648
s.
11.
Othar~;
...
Q ~ ~udlo : .
. are 011ml!itd
b.
FL.~10) (IJPff:lr/):
1a.
..
. " .
to
lade~
. ho~~ OfcommUrufy:nfor'IXl~'(f'.Wal&J:
CJ ciree mustperfMn
14.
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".' (~'!-\.}: " :. .,. .... .'.'.''._ 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~
. :.
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:.
b. Wnn~ .ioihe~~m1;1un1~:~ :
18. ...
b,
17.
'.
. 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.
" ,. . . .' .. .
,. . . ' : per .month o!l ci;.ir~nt W?Pgrt ~nisr. pf!~~ to(sp.i;lfy ~;:
.. . . .
c. Cl P!lYatleut$
" '
.
" '.
.. pef'rni>n;tn.on~~,. ~~g(dltt}':
11.
:a
b.
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~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"
.
. .
.
. .
. .
. .
. . . '!.
,,,_:......... ..
... (f.a.,..i1y i.aw.oom-.rc..Viol~.~ ~t'IWftr,itir;i.,~- .
. .
Plriinta~~t;t) .
. . . ',
.. . . .
. .. : ' . :. .'
: .
. . :.... u""or.m
..
24
:.
'
-~
'
Exhibit E
25
JAMES D. MORRISON
Re:
Evilsizor v. Sweeney
Contra Costa Superior Case No. 013-01648
1JI1
1
Ja1 /.
'Merri
cc:
26
CJBNS.ORG
;-
FL-415
FOR COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (name, state bar number, and addmss} or
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):
AUG 1 6 2016
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.
l.:J
PeiitioAer/Plaintiff
, , . ,
W .Respc:indent/Defendant
'
"
''~
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
5.
6.
a.
b.
c.
W
W
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
V'cla."TI.OI" ~ oT-
lC)o=t,
FINDINGS AND ORDER REGARDING CONTEMPT
~ MartiJlDi:an~
~ fSSOOIAl FORMS"'
Page 1 of3
Family Code, 17400, 17402, 11404
~~~~t~1~1
'
,-;
'
'
PETITIONER/PLAINTIFF:
["-REsPONDENT10EFENDANT:
Ken cVITSIZOr
<
CASE NUMBER:
013-01648
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 .
,.
..
.~
osc
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.
L~~O~(BG""')
14.
at (time) :
r \
....,,:>-
a.
IXl attorney fees in "the total amount of$ \ q 066 00 {fl;- Jpayable to (specify name):
b.
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.
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
.. .
(Q) llfaninDraiU
~ EsSENTIAt RIRMf"
. .-
28
. j. 'i. ... ~
.~
"'
..
., .
Page2 af3
'--..,/'
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
21.
22.
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'' :: .: . . ;, .
~
Date:
CJ
(SIGNATURE OF CITEE)
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."
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.
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 .
''
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
> .,,
,.,, --'-,...
Equal protection
Due process
,-,..CT----!-------.&. .. - . l ..1..1 __
~--.1..L
n ___
,i..__ rn_.1:_
4019. Application of section to certain prisoners; work performance and good behavior time credit
West's Annotated California Codes
Penal Code
Retroactiw application
Preemption
Legislatiw intent
Proposed Legislation
Purpose
Actual custody
Presentence custody
Effective:January1,2015
Nonpenal institutions
Drug treatment programs
Parole
Probation
Electronic monitoring
Weekend sentencing
Private work program
.. . . . . ,, h ' "
Discretion of court
- - - -- -- - - __ Currentness _ _ __ _._ __ _
Administratiw determination
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
32
t' .UU,j1UU4
0812512016
0811712016
17,
Aug.
10:45
P.0021003
15:30
201~
P. 2 , '
Mo. 0989
3:17PM
..
PetmONiR!Pt.AINTll'~
.er
'
('
ZCJr
'
caN~
013-0.1648
Orf-leR PARENT:
a'""
walVed ~for eentendng.
ID Citee \Wived tTme for tl'IEIL
.
8.
9,
1O.
11.
;(
ord,ered,
...
are olaml!Hd .
1!,
C ~ ~udlo~
:.
Cl Wrth~ul ~~JUdJi;,~ .
Fl."410) (~~):
...
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Exhibit F
34
AU.
'l
t).
11
Lu11\', l)(
No. : 01 G P.
- - -- - - 1
2
3
6
7
:..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
23
24
25
August 2 5~ 2016
Bruce C. :Mills
JLTIGE OF TIIE SUPERIOR COURT
- 1-
35
CJBNS.ORG
Exhibit G
36
MR.
MORRISON:
Your
Honor,
statute,
it'll say up
4
5
THE
MR.
another
if you
read the
for each
to give
MORR ISON:
--
or 1 2 0 hours'
community
to give
service.
8
9
believe,
five days
Yeah,
I believe
community service.
6
7
COURT:
to
CJBNS.ORG
THE COURT:
Yeah,
10
appropriate.
11
in the two
12
13
I don't find it
years
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
19
sentence
20
maybe a couple
21
sorry,
22
And so
he's
therefore,
as to
we do
I'll
believe
leave it
some
to the
But we request
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
28
THE COURT:
Yes.
So the
37
half
of it to begin with.
2
3
MS.
INSALACO:
THE
COURT:
MS.
INSALACO:
times.
THE COURT:
as
also
did file
a declaration
Evilsizor's fees.
Right.
We've had to
7
8
We
come back
here five
osc.
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.
MORRISON:
So my office sent me
a memo
just
15
16
17
18
THE COURT:
fees as
20
is
21
today, my --
23
INSALACO:
22
So my hourly
I
misspoke.
rate
can
go
is
I think
4 5 0.
this
Prior to
$18,000 is
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
a half for m e to
$4 5 0 an hour, right?
87
38
Exhibit H
39
CJBNS.ORG
REPORTER: REBOLLINI
CLERK: S. TIGUE
KERI EVILSIZOR
PLAINTIFF(S)
vs.
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 $20,010.00 payable to Scherman Insalaco LLP.
citee is remanded to the custody of the sheriff.
Date:
08/16/16
BY
Deputy clerk
40
Exhibit I
41
FL-415
FOR COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (name, state bar number, and address) or
GOVERNMENTAL AGENCY (pursuantto Family Code, 17400, 17404):
Michelene Insalaco
161711
Sucherman . Insalaco LLP
101 Mission Street, Suite 1640
San Francisco, CA 94105
TELEPHONENO.(Opffona/): (415) 357-5050
FAXNO .(Optional): (415) 357-5051
E-MA1LAooREss1op/iona1J:
mi@sucherman-insalaco.com
ATTORNEY FOR INameJ:
Keri Evilsizor
: i
i f.'"""'-- .f ~
MAILINGAooREss:
BRANCH NAME:
1.
g:
3.
013-01648
W
D
2.
CASE NUMBER:
' ~
'
D .
Petitioner/Plaintiff
Re$pondent/Defendant
'
"'.
' '
,. ~
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
5.
6.
a.
b.
c.
W
W
W
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-
l,;)o:\
Page 1 of 3
42
www.cou rrlnfo.c;u.9ov
CJBNS.ORG
:~'.
PET1T10NERJPLAINTIFF:
esPONDENT/DEFENDANT:
OTHER PARENT:
7.
a.
Ken Evilsizor
Joseph James Sweeney
osc
9.
0
W
10.
11.
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:
13.
14.
15.
-r ~
0 ~ (BG Ill\)
0 ,
-'6r\..hu:>
Cout\-\'
Lol\.~c.u.h.u'_o_.
. .\.- .
. '~
('\o %~
-+o
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.
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
b.
16. a.
b.
d5
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)
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.
22.
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):
;l.
Date:
a-
I,,
further hearing
l1t-
r-
2tfl
(SIGNATURE OF CITEE)
~ ~SE~AtFORMS-
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."
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
46
Exhibit J
47
0
W
D
D
8.
9.
10.
11.
CJBNS.ORG
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.
b.
-rq~O
~ (BC."'-) 0
14.
at (time):
on (date):
Citee must pay an administrative lee
of$
as determined by the community service agency
C~2ft-~ ~ ~
4<J\3() .<:C {il~
q cfB6 <::O {ES-)
at (time):
17.
(\o
+o
~ -\--
~
' 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
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
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
is denied.
ify name):
Francisco, CA 94105
-\4.--\1
and conditions of this order.
conditions of this order.
49
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
"It
was
kind
of
trumped-up,
driving defense.
Creek, 1984-87
staff. "
The
By John Roemer
Daily Journal Staff Writer
who
complained
ecutors.
lawyers
wince
thin-skinned, "
and
Judicial Performance.
"Judge Mills has engaged in a pat
courteous,
"Sure,
site.
said.
on Judicial Performance.
Burak
sarcastic,
demeaning and
pline.
P erformance,
Commission
voting
on
7-2,
Judicial
chastised
ishment.
"This
said
son
from
his
run-in
with
the
absolutely
fire. "
team
misdemeanor,
I'm
just
with
Contra
Costa
County
since."
young
who
the-record
hostility
toward
campaigned
for
then-District
2007-1
defined
Bar
ness,
the
American
open-mindedness,
sensitivity,
sion."
Larkin, the Walnut Creek lawyer,
called the CJP's investigation a frighten
court."
arbiter."
ters. "
with
dealing
record.
Court judge.
Ethics.
Mills
the courts.
of
courtrooms.
by
before the
other misconduct
Commission
on
Judicial
detention.
attorney.
Burak said.
2007-1
For
the
prosecution:
Holly
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
the
prosecution:
Greg
ous.
"On the other hand, I didn't agree
that
the
commission
should
have
2007
with
his
1 2 -year-old
son
school
in Emeryville.
The
trip
the
defense :
Shawn
S.
the
prosecution:
P atrick
the
prosecution:
Greg
2007-1
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
2007-1
Page 1
Page 3
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
Count 1 of 5
2001 Private Admonishment Documentation
Page 3
CJBNS.ORG
State of California
Commission on Judicial Performance
Page 4
IV.
Case Summaries
is c ip l in e
P r iv a t e A d m o n is h m e n t s
Page 5
IV.
Case Summaries
A d v is o r y L e t t e r s
Page 6
Pacl !:)
CJP Supp. 15
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
CJP Supp. 16
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
Count 2 of 5
2006 Public Admonishment Documentation
Page 9
STATE OF CALIFORNIA
BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE
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
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
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
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
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
Page 21
13
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.
______________/s/__________________
Marshall B. Grossman
Chairperson
Page 23
Count 3 of 5
2008 Advisory Letter Documentation
Page 24
CJBNS.ORG
STATE OF CALIFORNIA
COMMISSION ON JUDICIAL PERFORMANCE
2008
ANNUAL REPORT
Page 25
IV.
CASE SUMMARIES
SSaSSSgS3S3S*aaS*SiSS535^SKK2Sa^
Page 26
PACK 27
CJBNS.ORG
CJP Supp. 15
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 27
CJP Supp. 16
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
Count 4 of 5
2011 Advisory Letter Documentation
Page 29
STATE OF CALIFORNIA
COMMISSION ON JUDICIAL PERFORMANCE
Page 30
IV.
CASE SUMMARIES
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.
PAGE X,
Page 31
CJBNS.ORG
CJP Supp. 15
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
CJP Supp. 16
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
Count 5 of 5
2013 Public Admonishment Documentation
Page 34
CJP Supp. 1
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.)
Page 35
CJP Supp. 2
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.
Page 36
CJP Supp. 3
Page 37
CJBNS.ORG
CJP Supp. 4
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).)
Page 38
CJP Supp. 5
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.)
Page 39
CJP Supp. 6
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
Page 40
CJP Supp. 7
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.
Page 41
CJP Supp. 8
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
Page 42
CJP Supp. 9
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.
Page 43
CJP Supp. 10
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
Page 44
CJP Supp. 11
Page 45
CJP Supp. 12
Page 46
CJP Supp. 13
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
Page 47
CJP Supp. 14
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.
Page 48
CJP Supp. 15
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 49
CJP Supp. 16
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 50
CJBNS.ORG
CJP Supp. 17
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.
Page 51