Is a judge allowed to drop an “f bomb”, even if he or she is outside of court? The answer in California appears to be no, at least if it is in reference to a conversation with another judge.
The issue arose recently in a case filed with the State’s Commission on Judicial Performance. This is the agency that oversees discipline of state judges. The power of the commission is to either find the judge did nothing wrong or to level various types of discipline ranging from private reprimand to public admonishment to removal from the bench.
The case involving the swearing involved the Hon. Emily T. Spear, who got in trouble not just because of swearing, though swearing was definitely part of the matter that the Commission was investigating. Judge Spear was accused of not being in the courthouse when she was supposed to be and manipulating her calendar for personal benefit. Also, in October 2020, the judge made profane remarks about another judge during a weekly online meeting in which 29 judges participated.
The meeting, in part, concerned which judge should hear a civil harassment case. Judge Spear thought her microphone was muted and thus was taking part in another phone call. She was heard to say regarding a colleague, the Hon. Esther Kim, “Esther doesn’t want to do her fucking job” and “She won’t fucking take it even though it’s her fucking case”. Judge Spear later apologized.
Among other behavior, Judge Spear was supposed to cover another judge’s calendar in the afternoon. However, at midmorning, she informed the supervising judge that she had plans and would not be back in time. When called out about this by a supervising judge, Judge Spear said, “I didn’t know I had to tell people about my personal lunch plans”. In the disciplinary hearing, Judge Spear complained that the supervising judge disregarded Judge Spear’s childcare issues.
Judge Spear, who is based in Los Angeles, is a former prosecutor. She was elected to the bench in 2018. Some have complained about California’s procedure of allowing some judges to be elected, even though most are appointed by the Governor to finish up the six-year term of someone else who has left the job. The argument is that while the Governor’s office vets candidates by talking to colleagues and judges and interviewing them, those who run for office and win are automatically seated – regardless of their fitness for office. The only requirement is that for the ten years immediately proceeding the election, the candidate must have been an active, licensed attorney in California.
A judge in Lassen County, who was also elected, is facing discipline at the present time.
However, most elected judges in California serve admirably and without incident. Many advance to supervisory positions among their fellow judges and some have advanced to the Court of Appeal.
The Commission on Judicial Performance is made up of appellate justices, trial judges, lay people, and licensed attorneys.
You can read the case involving Judge Spear here.