A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.

No judge of a court of record shall receive his salary unless he shall make and subscribe before an officer entitled to administer oaths, an affidavit stating that no cause before him remains pending and undetermined for 90 days after it has been submitted for decision.

The Constitution of California requires that the "Legislature shall prescribe compensation for judges of courts of record. [p] A judge of a court of record may not receive the salary for the judicial office held by the judge while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision." (Cal. Const., art. VI, § 19.) The Legislature followed this command with an implementing statute. The present provision (Gov. Code, § 68210) states that: "No judge of a court of record shall receive his salary unless he shall make and subscribe before an officer entitled to administer oaths, an affidavit stating that no cause before him remains pending and undetermined for 90 days after it has been submitted for decision."

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The constitutional and statutory provisions amount to a determination that 90 days "affords a reasonable time within which to expect a trial judge to carry out the basic responsibility of a judge to decide cases." (Mardikian v. Commission on Judicial Performance (1985) 40 Cal.3d 473, 477, fn. 4, 220 Cal.Rptr. 833, 709 P.2d 852.) The penalty for a failure to do so is specifically provided: payment of salary is withheld. The salary is not forfeit because of the delay; payment is simply postponed until the submitted [51 Cal.App.4th 1245] matter is decided. (Wyatt v. Arnot (1907) 7 Cal.App. 221, 228, 94 P. 86.) Failure to render a decision within 90 days, and execution of a false affidavit declaring that no matter has been under submission beyond that time, are bases for judicial discipline. (See Mardikian v. Commission on Judicial Performance, supra, 40 Cal.3d 473, 220 Cal.Rptr. 833, 709 P.2d 852; McCullough v. Commission on Judicial Performance (1989) 49 Cal.3d 186, 260 Cal.Rptr. 557, 776 P.2d 259.) While there are no reported cases on the point, the delay also may be the basis for a writ of mandate under Code of Civil Procedure section 1085 to compel the court to make a decision.

Our Supreme Court has recognized that there are circumstances in which censure of a judge is not appropriate even though a case has been under submission for more than 90 days. "It would be manifestly unreasonable, and outside the contemplation of article VI, section 18, to censure or remove a competent judge whose workload and/or temporary disability made prompt decision of all matters submitted to him impossible. While delay in deciding cases may well cause criticism and bring the judicial office into disrepute, when that delay is the product of an overburdened and underfunded court the trial judges who are the backbone of the judicial system must not be forced to assume responsibility for a situation which is not of their making or within their control. To the extent that an

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intolerably burdensome workload makes prompt decision impossible even for the most conscientious judge, the answer to the problem must lie elsewhere than in judicial discipline." (Mardikian v. Commission on Judicial Performance, supra, 40 Cal.3d at p. 482, 220 Cal.Rptr. 833, 709 P.2d 852.) The court suggested that trial judges faced with this problem file a declaration of reasons for resubmission, similar to the statement required by rule 22.5(b) of the California Rules of Court of appellate judges who resubmit cases. (Id. at p. 484, fn. 11, 220 Cal.Rptr. 833, 709 P.2d 852.)

Resubmission without good cause is improper. (Id. at p. 482, 220 Cal.Rptr. 833, 709 P.2d 852.) The record does not inform us whether there was good cause for resubmission in this case. No reason for the resubmission was given. Nor was the approval of counsel for resubmission obtained.

We appreciate the frustration of counsel in cases where a judge simply does not decide a case within the appointed time, or resubmits it in an effort [51 Cal.App.4th 1246] to begin a new 90-day period. Only the boldest of counsel is likely to protest while the case remains undecided in the hands of the trial judge. The constitutional and statutory scheme for prompt decisions is largely self-enforcing. It depends on the good faith and industry of the judges. Attorneys have a right to expect judges to honor this public policy, and we expect that judges at all levels will do so.

The focus of our present inquiry is upon the Commission's further finding that the resubmission orders which petitioner made in the 14 cases were made "without good cause," and its conclusion overall that petitioner was guilty of "conduct prejudicial to the administration of justice which brings the judicial office into disrepute." Viewing the totality of petitioner's conduct in the context in which it occurred we are constrained, with reservations, to agree.

Our reservations stem from the obvious proposition that while a judge can be expected to be diligent, hard-working, and even self-sacrificing when necessary, he cannot be expected upon pain of official discipline to accomplish tasks which are beyond his capacity and resources. When, with "proper application," a judge would be able to decide matters pending before him

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within 90 days of their submission for decision, but does not do so, the failure to [709 P.2d 858] perform is a basis for censure or removal under section 18(c), as a persistent failure to perform judicial duties even if the failure is not an intentional disregard of duties. (In re Jensen (1978) 24 Cal.3d 72, 73, 154 Cal.Rptr. 503, 593 P.2d 200.) Censure under the "conduct prejudicial to the administration of justice" clause of subdivision (c) is not appropriate, however, for delays that are neither "persistent" nor avoidable. It would be manifestly unreasonable, and outside the contemplation of article VI, section 18, to censure or remove a competent judge whose workload and/or temporary disability made prompt decision of all matters submitted to him impossible. While delay in deciding cases may well cause criticism and bring the judicial office into disrepute, when that delay is the product of an overburdened and underfunded court the trial judges who are the backbone of the judicial system must not be forced to assume responsibility for a situation which is not of their making or within their control. ⁸ To the extent that an intolerably burdensome workload[40 Cal.3d 483] makes prompt decision impossible even for the most conscientious judge, the answer to the problem must lie elsewhere than in judicial discipline.

In this case, however, there are factors present which support the Commission's conclusion. A trial judge confronted with a workload which prevents him from deciding all cases promptly can at least minimize the impact of delay so far as possible, by assigning priorities which take into account the time necessary to decide, and the effect of delay upon the parties in, particular matters. This petitioner apparently did not do. As the Special Masters observed in their report to the Commission, eight of the fourteen cases in which decision was delayed involved the dissolution of a marriage with attendant questions, such as child custody, particularly demanding of prompt resolution. ⁹

The Commission on Judicial Performance, following a factual stipulation in lieu of hearing, receipt of documentary evidence in mitigation, and oral argument, found that despite an informal admonition by the commission, between 1971 and 1977 Judge Arden T. Jensen repeatedly failed to decide within 90 days cases that had been submitted to him for decision, and that he nevertheless regularly executed affidavits declaring that no cause remained pending and undetermined before him for 90 days after such submission, thus entitling him to his salary. (Cal.Const., art. VI, § 19; Gov.Code, § 68210.)

The commission found that Judge Jensen's failure to decide his cases on time was not caused by an intentional disregard of his duties, but that with proper application he could have decided each of the matters within 90 days of submission. The commission therefore concluded that Judge Jensen's conduct constituted persistent failure to perform his duties (Cal.Const., art. VI, § 18, subd. (c)), and recommended that he be publicly censured.

The record reveals that Judge Creede is a diligent, hardworking and highly respected judge. Nonetheless, clear and convincing evidence supports the conclusion that he violated canon 3A(5) of the California Code of Judicial Conduct, which states that "A judge should dispose promptly of the business of the court." During a five-year period, between March 1979 and April 1985, Judge Creede repeatedly and unjustifiably delayed filing decisions in cases submitted to his court. During this time, he continued to execute erroneous salary affidavits and to collect his salary even though submitted cases remained pending and undecided in his court for periods in excess of 90 days. (See. Cal. Const., art. VI, § 19; Gov.Code, § 68210; Mardikian v. Commission on Judicial Performance (1985) 40 Cal.3d 473, 220 Cal.Rptr. 833, 709 P.2d 852.) He did not, however, knowingly falsify the salary affidavits, and did not intentionally or maliciously disregard his adjudicative responsibilities. There was no credible evidence of actual prejudice from the delays, which were partially attributable to an excessive workload and inadequate support staff. Yet he could have taken steps to monitor his cases and to dispose more promptly of submitted matters. Since the protracted delays served to damage the esteem of the public for the judiciary, his conduct was " ... prejudicial to the administration of justice...."

[42 Cal.3d 1100] While some members of this court would prefer a private admonishment, Judge Creede has foreclosed this sanction as a practical matter by waiving the confidentiality provisions. After reviewing the record, we are satisfied that the conclusion of the commission is justified, and that its recommendation should be adopted. This order will serve as the appropriate sanction.

(10) We conclude, as the masters did, that Judge Freedman's persistent and repeated failure over a four-year period to decide the matters charged and proved in count 1 within 90 days of submission was prejudicial misconduct. We adopt the masters' conclusions that Judge Freedman's delays violated canons 3A and 3B(8) of the California Code of Judicial Ethics. Canon 3A provides the “judicial duties prescribed by law shall take precedence over all other activities of every judge.” Canon 3B(8) requires that “[a] judge shall dispose of all judicial matters fairly, promptly, and efficiently.”

In addition, we conclude independently that Judge Freedman's [**30] conduct violated canons 1 and 2A of the California Code of Judicial Ethics as well. Canon 1 requires judges to “participate in establishing, maintaining, and enforcing high standards of conduct,” and requires they “personally observe those standards so that the integrity and independence of the judiciary will be preserved.” Canon 1 is intended in part to preserve public confidence in the judiciary, and violations of the Code of Judicial Ethics “diminish public confidence in the judiciary and thereby do injury to the system of government under law.” (Advisory Com. com., 23 pt. 4 West's Ann. Cal. Codes, Court Rules (2006) foll. canon 1, p. 341.) Canon 2A provides that a judge shall “respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Judge Freedman's persistent and unjustified failure to rule in numerous cases, sometimes for long periods of time and after he had been counseled about excessive delay by two presiding judges, fell well below the high standards of conduct expected of the judiciary, and injured public confidence in the judiciary.

(11) The evidence amply supports the masters' conclusion that Judge Freedman's persistent, unjustified, [**31] and repeated failure to decide the matters [*241] submitted to him as charged in count 1 constitutes prejudicial misconduct. It is established that substantial and persistent failure to rule on submitted matters without substantial justification “may well cause criticism and bring the judicial office into disrepute.” (Mardikian, supra, 40 Cal.3d at pp. 482, 485; see also In re Creede (1986) 42 Cal.3d 1098, 1099 [233 Cal. Rptr. 1, 729 P.2d 79]; In re McCullough (1987) 43 Cal.3d 534, 535 [236 Cal. Rptr. 151, 734 P.2d 987].) In several of the delayed cases, litigants directly pointed out to Judge Freedman that the delays were actually or potentially harming their interests, and requested decisions. Judges are employed by the state to decide cases; when they fail to do so without substantial justification, their failure tends to cast the judicial office into disrepute and to lower public esteem for the judiciary. We adopt the masters' conclusion that the 21 decisional delays charged and proven in count 1 were prejudicial misconduct.

(14) The number of acts of misconduct is relevant to discipline to the extent it shows isolated incidents, or a pattern of misbehavior that demonstrates that the judge lacks judicial temperament and the “ ‘ “ability to perform judicial functions in an even-handed manner.” ’ ” (Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 918 [81 Cal. Rptr. 2d 58, 968 P.2d 958] [pervasiveness of misconduct over the judge's entire career demonstrated unfitness for office].) We have found numerous [*249] instances of prejudicial and willful misconduct. Judge Freedman delayed rulings in 21 instances between 2001 and 2004, even after warnings from successive presiding judges. During that time, Judge Freedman rarely if ever stopped regularly executing salary affidavits. The pattern of wrongdoing is further exacerbated by the judge's widespread failure to rule on fee waiver applications. This [**50] pattern of disturbing and pervasive misconduct warrants severe discipline.

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(17) Judge Freedman has committed serious misconduct that taken alone might warrant removal from office. However, he is a respected and talented jurist who was strongly supported in this proceeding by a significant number of attorneys and colleagues, including two former presiding judges and the present presiding judge of the court in which he sits. Two of those former presiding judges were called as witnesses by the examiner, and testified not only to their high opinion of Judge Freedman and their confidence in him, but to facts that support this decision to censure him. Counsel for parties in a number of the delayed matters supported Judge Freedman in these proceedings and testified that they would not hesitate to appear before him in future cases. Other than the subject misconduct, there was no evidence presented that called Judge Freedman's abilities as a jurist or his suitability for the bench into question. Judge Freedman has not been the subject of any relevant prior discipline, he has acknowledged his wrongdoing and is contrite, and we are satisfied [**59] he is unlikely to offend again. For those reasons, and after careful consideration of the unique circumstances of this case, we have determined to issue this severe public censure of Judge Robert B. Freedman.