California State Bar Shields Disgraced Judges

The California Commission on Judicial Performance describes its mandate thusly:
“The Commission on Judicial Performance, established in 1960, is the independent state agency responsible for investigating complaints of judicial misconduct and judicial incapacity and for disciplining judges, pursuant to article VI, section 18 of the California Constitution.

The Commission’s mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system. While the majority of California’s judges are committed to maintaining the high standards expected of the judiciary, an effective method of disciplining judges who engage in misconduct is essential to the functioning of our judicial system. Commission proceedings provide a fair and appropriate mechanism to preserve the integrity of the judicial process.”

To that end, the CJP’s website lists – alphabetically – all disgraced judges admonished, censured or removed in the past 20 years.

However, the California State Bar (www.calbar.org) is blissfully unaware of that list. Even though the attorney records on its site are supposed to disclose all administrative and public actions taken against the licensees, I have cross-referenced the CJP list with the California Bar records, and – surprise! – no adverse actions are shown on any of their records. Moral lapse on the part of the ethics-enforcers?

New Law Clarifies Disciplinary Grounds For Real Estate Licensees

(CAR)
On July 27, 2007, Governor Arnold Schwarzenegger signed into law Assembly Bill 840 clarifying the authority of the California Department of Real Estate (DRE) to discipline a real estate licensee on the basis of a criminal conviction. Effective January 1, 2008, the DRE will be able to suspend or revoke a real estate license based upon a misdemeanor conviction (or guilty plea) if the crime is substantially related to the functions of the licensed profession, but regardless of whether the crime involves moral turpitude. The new law does not change the DRE’s current authority to revoke a license based upon a felony conviction (or guilty plea).

This new legislation addresses the interplay between two existing sections of the California Business & Professions Code. Currently, section 10177(b) allows the DRE to revoke a license if the licensee is convicted of a felony or a crime involving moral turpitude. Section 490, on the other hand, allows a state licensing board to revoke a license if the licensee has been convicted of a crime substantially related to the qualifications, functions, or duties of the licensed profession.

Last year, however, a court ruled that sections 490 and 10177(b) are not independent grounds for disciplinary action, but that section 490 limits the DRE’s authority to take disciplinary action (Petropoulos v. Department of Real Estate (2006) 142 Cal. App. 4th 554). Hence, the court decided that, under a two-prong requirement, a real estate license may be revoked based on a misdemeanor conviction only if it is a crime involving moral turpitude and substantially related to the functions of the licensed profession. The new law starting January 1, 2008 does away with the “moral turpitude” prong.

To view the full text of Assembly Bill 840, go to www.leginfo.ca.gov.

Punch Your Girlfriend, Lose Your Real Estate License?

Mr. Petropoulous, a California broker, was convicted twice of misdemeanor battery based on incidents of domestic violence.  He served a total of twenty days in jail and three years probation, after which time his convictions were expunged.  According to Business and Professions Code Section 10177, the Department of Real Estate may revoke a license for someone who pleads guilty or no contest or who is convicted of a felony or crime involving moral turpitude.  “Moral turpitude” is generally defined as conduct that indicates a “readiness to do evil” or conduct that constitutes “baseness, violence or depravity”.  Business and Professions Code Section 490 provides that “any California agency can revoke a license for someone who has been convicted of a crime substantially related to the qualifications, functions or duties of the business or profession for which the license was issued”.

In the context of real estate, it has been held that a crime is “substantially related” to the duties, qualifications or functions of real estate licensed activity if, among other things, it involves an intent or threat of doing substantial injury to the person of another.  Based on these convictions, the DRE filed an accusation, attempting to revoke Petropoulos’ license.  The defendant argued that his crimes were misdemeanors that did not involve moral turpitude and were not substantially related to the duties of a real estate licensee.  The DRE countered by asserting that while domestic battery, per se, is not a crime of moral turpitude, in this particular case, where there was testimony that the defendant punched his girlfriend in the face, there was evidence of moral turpitude.

An administrative law judge disagreed, ruling that the testimony of the girlfriend was not conclusive, so it was not clear that the defendant intended to cause substantial injury to the person of another. Therefore, there was no crime substantially related to the duties of a real estate licensee.  The DRE rejected the administrative law judge’s decision, conceding that there may not have been a crime involving moral turpitude, but arguing that the criminal actions of the defendant were substantially related to the duties of a licensee because he did intend to do substantial harm to his victim.  The superior court upheld the DRE’s decision, but on appeal the defendant prevailed.

The Court of Appeal held that the DRE could not discipline the defendant simply because he committed a crime “substantially related to the qualifications, functions and duties of a real estate licensee” (section 490);  because in order to revoke the license, Petropoulous must have also committed a felony, or a misdemeanor involving moral turpitude.  In other words, while section 10177 permits the DRE to revoke a license for someone who commits a felony or crime involving moral turpitude, section 490 limits the DRE’s ability to revoke unless the crime is also substantially related to the functions, duties and qualifications of the regulated business.  In this case the DRE was relying on section 490 alone, because it admitted there was no felony or crime involving moral turpitude.  Since the DRE made this admission, the court held that it could not revoke the license.