                   TO BE PUBLISHED IN THE OFFICIAL REPORTS




                        OFFICE OF THE ATTORNEY GENERAL

                             State of California


                             JOHN K. VAN DE KAMP

                              Attorney General


                       -------------------------------­
                                      :

                                      :

                  OPINION             :

                                      :

                    of                :    No. 86-1103

                                      :

           JOHN K. VAN DE KAMP        :    MAY 27, 1987

             Attorney General         :

                                      :

           RODNEY O. LILYQUIST        :

         Deputy Attorney General      :

                                      :

      --------------------------------------------------------------­
         THE COMMISSION ON JUDICIAL PERFORMANCE has requested an opinion on the

following question:

          Are Code of Civil Procedure section 2093 and Government Code section

1225 constitutional in requiring the Commission on Judicial Performance to issue

certifications under specified conditions?


                               CONCLUSION


          Code of Civil Procedure section 2093 and Government Code section 1225

are constitutional in requiring the Commission on Judicial Performance to issue

certifications under specified conditions.

                                ANALYSIS


          The Legislature has recently amended Code of Civil Procedure section

2093 and Government Code section 1225 (Stats. 1986, ch. 1418) to require the

Commission on Judicial Performance ("Commission") to issue a certification to a

former judge or justice under certain conditions. Section 2093 provides:

      "(a) Every court, every judge, or clerk of any court, every justice,

      and every notary public, and every officer or person authorized to

      take testimony in any action or proceeding, or to decide upon

      evidence, has power to administer oaths or affirmations.




            "(b) A former judge or justice of a court of record in this

      state who retired or resigned from office, other than a judge or

      justice who was retired by the Supreme Court for disability, shall

      have the power to administer oaths or affirmations, if the former

      judge or justice requests and receives a certification from the

      Commission on Judicial Performance that there was no formal

      disciplinary proceeding pending at the time of retirement or

      resignation. Where no formal disciplinary proceeding was pending at



                                      1.                                86-1103

      the time of retirement or resignation, the Commission on Judicial

      Performance shall issue the certification.

            "No law, rule, or regulation regarding the confidentiality of

      proceedings of the Commission on Judicial Performance shall be

      construed to prohibit the Commission on Judicial Performance from

      issuing a certificate as provided for in this section."


Section 1225 similarly states:

            "Every executive and judicial officer and every Member of the

      Legislature may administer and certify oaths.


            "A former judge of a court of record in this state who retired

      or resigned from office, other than a judge who was retired by the

      Supreme Court for disability, shall be deemed a judicial officer for

      purposes of this section, if the former judge requests and receives

      a certification from the Commission on Judicial Performance that

      there was no formal disciplinary proceeding pending at the time of

      retirement or resignation. Where no formal disciplinary proceeding

      was pending at the time of retirement or resignation, the Commission

      on Judicial Performance shall issue the certification.       No law,

      rule, or regulation regarding the confidentiality of proceedings of

      the Commission on Judicial Performance shall be construed to

      prohibit the Commission on Judicial Performance from issuing a

      certificate as provided for in this section."


          The question presented for resolution is whether the Commission may

constitutionally issue a certification as directed by these two statutes. We

conclude that the statutes are consistent with the provisions of the California

Constitution. 


          In Mosk v. Superior Court (1979) 25 Ca1.3d 474, 489-490, the Supreme

Court summarized the duties of the Commission as follows:


      "It has authority to investigate complaints of judicial misconduct,

      a judge's failure or inability to perform the duties of a judge, and

      other conduct prejudicial to the administration of justice. The

      Commission has authority to conduct hearings, make findings of fact

      (see Gov.    Code, §§ 68750-68755; Cal.      Rules of Court, rules

      901-922), and recommend to the Supreme Court that a given judge be

      censured or removed or retired from the court. (Cal. Const., art.

      VI, § 18, subd. (c).) The Commission may privately admonish a judge

      for improper action or a dereliction of duty, but it has no power to

      censure, remove, retire, or otherwise discipline a judge. It can

      only make certain recommendations to the Supreme Court which then

      reviews the evidence and makes its own findings. ( Geiler v.

      Commission on Judicial Qualifications (1973) 10 Ca1.3d 270, 276;

      Spruance v. Commission on Judicial Qualifications (1975) 13 Ca1.3d

      778.) Although the Commission's findings are given great weight by

      the Supreme Court, they are inconclusive except where the

      Commission, having made a preliminary investigation, concludes that

      there is insufficient evidence to charge a judge with judicial

      misconduct."


             The Commission conducts its affairs in accordance with rules

promulgated by the Judicial Council.       Section 18 of article VI of the

Constitution not only specifies what the Commission may do but it mandates that

the Judicial Council adopt rules     concerning the Commission's proceedings.

Section 18 provides in relevant part:

            "(a) A judge is disqualified from acting as a judge, without



                                      2.                                86-1103

      loss of salary, while there is pending . . . a recommendation to

      the Supreme Court by the Commission on Judicial Performance for

      removal or retirement of the judge.

            "(b) On recommendation of the Commission on Judicial

      Performance or on its own motion, the Supreme Court may suspend a

      judge from office without salary. . . . 


            "(c)    On recommendation of the Commission on Judicial

      Performance the Supreme Court may (1) retire a judge for disability

      that seriously interferes with the performance of the judge's duties

      and is or is likely to become permanent, and (2) censure or remove

      a judge for action occurring not more than 6 years prior to the

      commencement of the judge's current term that constitutes wilful

      misconduct in office, persistent failure or inability to perform the

      judge's duties, habitual intemperance in the use of intoxicants or

      drugs, or conduct prejudicial to the administration of justice that

      brings the judicial office into disrepute.      The commission may

      privately admonish a judge found to have engaged in an improper

      action or a dereliction of duty, subject to review in the Supreme

      Court in the manner provided for review of causes decided by a court

      of appeal.

          " . . . . . . . . . . . . . . . . . . . . . . .


            "(f) The Judicial Council shall make rules implementing this

      section and providing for confidentiality of proceedings."


           The Judicial Council is comprised of the Chief Justice and one other

justice of the Supreme Court, three Court of Appeal justices, five superior court

judges, three municipal court judges, two justice court judges, four State Bar

members and two legislators. (Cal. Const., art. VI, § 6.) Besides adopting

rules for the Commission's proceedings, it has several other duties, including:

            "To improve the administration of justice the council shall

      survey judicial business and make recommendations to the courts,

      make recommendations annually to the Governor and Legislature, adopt

      rules for court administration, practice and procedure, not

      inconsistent with statute, and perform other functions prescribed by

      statute." (Cal. Const., art. VI, § 6.)


The Judicial Council's rules for the Commission's proceedings are contained in

the California Rules of Court, rules 901-922.      Rule 902 provides for the

confidentiality of the Commission's proceedings:

            "(a) Except as provided in this rule, all papers filed with

      and proceedings before the Commission, or before the masters

      appointed by the Supreme Court pursuant to rule 907, shall be

      confidential until a record is filed by the Commission in the

      Supreme Court. Upon a recommendation of censure, all papers filed

      with and proceedings before the Commission or masters shall remain

      confidential until the judge who is the subject of the proceedings

      files a petition in the Supreme Court to modify or reject the

      Commission's recommendation or until the time for filing a petition

      expires.


            "Information released by the Commission under this subdivision

      in proceedings resulting in a recommendation of censure shall make

      appropriate reference to a petition for review in the Supreme Court

      filed by the judge, if any is filed, to the end that the public will

      perceive that the Commission's recommendation and findings are

      wholly or partly contested by the judge.



                                       3.                                86-1103

           "(b) The Commission may release information regarding its

     proceedings under the following circumstances:

           "(1) If a judge is publicly charged with involvement in

     proceedings before the Commission resulting in substantial

     unfairness to him, the Commission may, at the request of the judge

     involved, issue a short statement of clarification and correction.


          "(2) If a judge is publicly associated with having engaged in

     serious reprehensible conduct or having committed a major offense,

     and after a preliminary investigation or a formal hearing it is

     determined there is no basis for further proceedings or

     recommendation of discipline, the Commission may issue a short

     explanatory statement.

           "(3) When a formal hearing has been ordered in a proceeding in

     which the subject matter is generally known to the public and in

     which there is broad public interest, and in which confidence in the

     administration of justice is threatened due to lack of information

     concerning the status of the proceeding and the requirements of due

     process, the Commission may issue one or more short announcements

     confirming the hearing, clarifying the procedural aspects, and

     defending the right of a judge to a fair hearing.


           "(4) If a judge retires or resigns from judicial office

     following institution of formal proceedings, the Commission may, in

     the interest of justice or to maintain confidence in the

     administration of justice, release information concerning the

     investigation and proceedings to a public entity .


            "(5) Upon completion of an investigation or proceeding, the

      Commission shall disclose to the person complaining against the

      judge that after an investigation of the charges the Commission (i)

      has found no basis for action against the judge, (ii) has taken an

      appropriate corrective action, the nature of which shall not be

      disclosed, or (iii) has filed a recommendation for the censure,

      removal, or retirement of the judge. The name of the judge shall

      not be used in any written communication to the complainant, unless

      the record has been filed in the Supreme Court." (Emphasis added.)


           Several reasons have been given for maintaining the confidentiality

of the Commission's proceedings. In Mosk v. Superior Court, supra, 25 Ca1.3d

474, 491-492, the court stated:


            "The confidentiality of investigations and hearings by the

      Commission is based on sound public policy.          Confidentiality

      encourages the filing of complaints and the willing participation of

      citizens and witnesses by providing protection against possible

      retaliation or recrimination. (McCartney v. Commission on Judicial

      Qualifications (1974) 12 Ca1.3d 512, 521; Landmark Communications,

      Inc. v. Virginia (1978) 435 U.S. 829.) Confidentiality protects

      judges from injury which might result from publication of unexamined

      and unwarranted complaints by disgruntled litigants or their

      attorneys (Landmark Communications, Inc. v. Virginia, supra), or by

      political adversaries.    Confidentiality of investigations by the

      Commission preserves confidence in the judiciary as an institution

      by avoiding premature announcement of groundless claims of judicial

      misconduct or disability. ( Landmark Communications, Inc.         v. 

      Virginia, supra.)     Confidentiality of proceedings before the

      Commission is essential to protecting the judge's constitutional

      right to a private admonishment (see Cal. Const., art. VI, § 18,



                                       4.                                86-1103

      subd. (c)), if the circumstances so warrant.       When removal or

      retirement is justified by the charges, judges are more likely to

      resign or retire voluntarily without the necessity of a formal

      proceeding if the publicity that would accompany such a proceeding

      can thereby be avoided. (Landmark Communications, Inc. v. Virginia,

      supra, 435 U.S. 829.)       Leading writers have recognized that

      confidentiality of investigations and hearings by the Commission is

      essential to its success. (See Frankel,       Judicial Conduct and

      Removal of Judges for Cause in California (1962) 36 Cal.L.Rev. 72;

      Frankel, Removal of Judges:     California Tackles an Old Problem

      (1963) 49 A.B.A. J. 166, 170; Traynor, Rising Standards of Courts

      and Judges (1965) 40 State Bar J. 677, 688; 1965 Rep. of the Com. on

      Judicial Qualifications to the Governor, p. 2.)" (Fns. omitted,

      emphasis added.)

To this list may be added the purpose of protecting the right of the Supreme

Court "to decide for itself whether to administer public censure." ( Gubler v.

Commission on Judicial Performance (1984) 37 Cal.3d 27, 60.)

            Having thus examined the statutes in question and the roles of the

Commission and Judicial Council under the Constitution, we turn to the applicable

rules for determining whether these statutes are constitutional. In Methodist

Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, the Supreme Court stated:


            "Unlike the federal Constitution, which is a grant of power to

      Congress, the California Constitution is a limitation or restriction

      on the powers of the Legislature. [Citations.]        Two important

      consequences flow from this fact.      First, the entire law-making

      authority of the state, except the people's right of initiative and

      referendum, is vested in the Legislature, and that body may exercise

      any and all legislative powers which are not expressly or by

      necessary implication denied to it by the Constitution. [Citations.]

      In other words, 'we do not look to the Constitution to determine

      whether the legislature is authorized to do an act, but only to see

      if it is prohibited.' [Citation.]


            "Secondly, all intendments favor the exercise of the

      Legislature's plenary authority: 'If there is any doubt as to the

      Legislature's power to act in any given case, the doubt should be

      resolved in favor of the Legislature's action. Such restrictions

      and limitations [imposed by the Constitution] are to be construed

      strictly, and are not to be extended to include matters not covered

      by the language used.' [Citations.] Conversely, a constitutional

      amendment removing those restrictions and limitations should, in

      cases of doubt, be construed liberally 'in favor of the

      Legislature's action.'"


Moreover, in Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, the

court observed:

      "[O]ur   past   cases    establish   that   the    presumption   of

      constitutionality accorded to legislative acts is particularly

      appropriate when the Legislature has enacted a statute with the

      relevant constitutional prescriptions clearly in mind. [Citation.]

      In such a case, the statute represents a considered legislative

      judgment as to the appropriate reach of the constitutional

      provision. Although the ultimate constitutional interpretation must

      rest, of course, with the judiciary [citation], a focused

      legislative judgment on the question enjoys significant weight and

      deference by the courts."

            Applying these principles, we find that the Legislature has enacted



                                       5.                                86-1103

Code of Civil Procedure section 2093 and Government Code section 1225 with the

language of article VI of the Constitution in mind. Both statutes provide:

            "No law, rule, or regulation regarding the confidentiality of

      proceedings of the Commission on Judicial Performance shall be

      construed to prohibit the Commission on Judicial Performance from

      issuing a certificate as provided for in this section."


Hence each must be given "significant weight and deference" in considering its

constitutionality.

            While these statutes are tangentially related to the constitutional

powers of the Commission and Judicial Council, the Legislature has not sought to

compromise the authority of either public body. Disclosure under the statutes

is made only to the former judge and only when "there was no formal disciplinary

proceeding pending at the time of retirement or resignation." In the absence of

such proceedings, the statutes do not impinge upon the Judicial Council's

authority to adopt rules with respect to the Commission's proceedings;

maintaining the confidentiality of the proceedings is assured under the

legislation. The goals of protecting complainants and witnesses and the right

of the Supreme Court to administer public censure are not threatened where the

disclosure concerns solely the nonexistence of proceedings.


            It must also be noted that the constitutional provision for

confidentiality terminates when the Commission files its record in the Supreme

Court. (See Gubler v. Commission on Judicial Performance, supra, 37 Cal.3d 27,

59-60; Mosk v. Superior Court, supra, 25 Cal.3d 474, 490, 499.) Such is also the

basic provision of rule 902 of the California Rules of Court. We believe that

disclosure to a former judge that no proceedings existed may be treated similarly

to the situation where the proceedings have terminated.         Support for this

conclusion may be found in Gubler v. Commission on Judicial Performance, supra,

37 Cal.3d 27, 59, where the court observed that the constitutional provision for

confidentiality "was construed in Mosk v. Superior Court (1979) 25 Cal.3d 474,

to require that commission proceedings be confidential, at least while they are

under way." Code of Civil Procedure section 2093 and Government Code section

1225 do not compromise any proceedings of the Commission that are, or were ever,

underway.

             We are directed to harmonize and give effect to both the Constitution

and the Legislature's statutes if at all possible. (See State Personnel Bd. v.

Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 437-441; Pacific Legal

Foundation v. Brown, supra, 29 Cal.3d 168, 193-199.)            Here we find no

impermissible conflict. Simply put, nothing is disclosed to the public under

these statutes, and no pending or closed proceeding of the Commission is

compromised.     Different public purposes are served by the constitutional

provisions and the statutes with differing consequences.





                                       6.                                 86-1103

            In answer to the question presented, therefore, we conclude that Code

of Civil Procedure section 2093 and Government Code section 1225 are

constitutional in requiring the Commission to issue certifications under the

specified conditions.

                                   * * * * *





                                       7.                                86-1103

