|San Diego Superior Court Judge Gary Kreep|
Mark Lizarraga, trial counsel for the California Commission on Judicial Performance, said in legal brief filed Monday that Kreep should also lose his seat because he has not acknowledged he violated judicial ethics rules on many of the 29 acts of misconduct that a three-judge panel said he committed.
The argument that Kreep should be removed from the bench — the most severe penalty that the commission can levy — marks the most serious blow against the one-time conservative legal activist who won an upset election to the bench in 2012 but whose early months as a judge were rocky.
James Murphy, Kreep’s lawyer in the discipline case, said removal was too harsh of a penalty because the judge is not corrupt or dishonest, his conduct has improved from his first year on the bench, and he is liked and respected by lawyers who appear before him.
Murphy said Kreep has acknowledged some of his conduct when he first became a judge was “inappropriate” and that a lesser penalty is warranted so Kreep could remain on the bench. He is up for re-election next year.
Removing a judge from the California bench is a rare event. Only 11 judges have been removed since 1995, according to commission statistics. The most recent was in 2016 when Valeriano Saucedo, a Tulare County judge, was removed after 14 years on the bench for having an improper relationship with a court clerk and then lying about it.
The charges against Kreep filed last year focus mostly on his conduct while on the bench, though some also cover campaign finance violations from his 2012 race.
He was accused of making a series of remarks from the bench that included comments about the physical attractiveness of women lawyers who appeared in his court, using nicknames like “Bun Head” and “Dimples” for lawyers, and speaking Spanish to Hispanics in his courtroom instead of English. All judicial proceedings are supposed to be conducted in English.
In all, Kreep faced 32 separate allegations of misconduct. Most happened during his 2012 campaign and the first year he was on the bench.
At the week-long hearing in February before a panel of judges, Kreep alternately took responsibility for some but not all of the comments, and said he did not mean to be offensive. Murphy also contended the judge was the target of a harassment campaign by senior leadership of the San Diego bench who were embarrassed that Kreep had won the seat.
Before becoming a judge, Kreep had a long legal career that included work on a number of conservative legal causes, including the discredited "birther" fight that erroneously questioned if former President Barack Obama was a U.S. citizen.
In a 90-page report issued in April, the judicial panel found Kreep committed misconduct on 29 of the 32 accusations against him. The most serious finding of “willful misconduct” centered on his comments after learning he would be sent to Traffic Court after the San Diego City Attorney’s Office said its lawyers would boycott taking cases to his misdemeanor courtroom.
That move, known as a “blanket challenge,” came in September 2013. Senior lawyers had complained about how Kreep treated some deputy city attorneys and how he handled some misdemeanor cases.
After learning of the challenge and his transfer, Kreep talked about it with some deputy public defenders and said one of them could be targeted too. Those comments about a challenge are inappropriate for a judge to make and violate judicial ethics, the judges said.
They also concluded that Kreep’s testimony at the hearing that he spoke with the defense lawyers as a courtesy to let them know he would not be hearing cases that day was “not credible.”
Lizarraga said that was just one instance where the judicial panel concluded that Kreep’s version of events “lacked candor or credibility.” For that reason, as well as the sheer number of misconduct findings, Kreep should be removed he said.
Neither Kreep, who works in the downtown San Diego Superior Court, nor his lawyer Murphy responded Tuesday to requests to comment on the latest filing.
The matter will now go before the 11-member Commission on Judicial Performance, which will decide what discipline — if any — Kreep will get. The commission can chose a range of options from issuing an advisory letter, private admonishment, public admonishment, censure or removal from the bench.
The commission also will hold a hearing of its own and can hear from both sides, then make a determination to adopt the findings and conclusions from the judicial panel that heard the case in February. A date for the commission’s hearing has not yet been set.
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Lawyer tells judicial discipline panel Judge Gary Kreep should be removed from bench for misconduct