Oberholzer

BY THE COURT:

This original writ proceeding presents the following issues: (1) whether the Commission on Judicial Performance (Commission) has authority to issue a confidential advisory letter (commonly known as a "stinger" letter); (2) whether the issuance of such a letter amounts to "discipline" that implicates a judge's right to due process of law; (3) whether such a letter may be issued based upon a perceived legal error committed by a judge; and (4) whether petitioner here, Judge Richard J. Oberholzer, committed sanctionable legal error in dismissing a criminal case after the People indicated they were not ready to proceed.

As we shall explain, we conclude that the Commission has authority to issue advisory letters, that such letters are a form of discipline, that the Commission's procedures comport with the requirements of due process of law, and that such letters may be based upon a perceived legal error, if such error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty. In the instant case, petitioner's dismissal of a…

This original writ proceeding presents the following issues: (1) whether the Commission on Judicial Performance (Commission) *375 has authority to issue a confidential advisory letter (commonly known as a “stinger” letter); (2) whether the issuance of such a letter amounts to “discipline” that implicates a judge’s right to due process of law; (3) whether such a letter may be issued based upon a perceived legal error committed by a judge; and (4) whether petitioner here, Judge Richard J. Oberholzer, committed sanctionable legal error in dismissing a criminal case after the People indicated they were not ready to proceed.

As we shall explain, we conclude that the Commission has authority to issue advisory letters, that such letters are a form of discipline, that the Commission’s procedures comport with the requirements of due process of law, and that such letters may be based upon a perceived legal error, if such error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty. In the instant case, petitioner’s dismissal of a…

Concurring.—Although I agree with the result and with much of the reasoning in the majority opinion, I would take a somewhat different approach to the question of discipline for legal error. The question raised by this case, in my view, is not whether a judge’s legal error is itself subject to investigation or discipline by the Commission on Judicial Performance (Commission)—even the Commission concedes it is not, and canon 1 of the California Code of Judicial Ethics so provides. The question, rather, is whether a legal error of the type asserted in the complaint against petitioner has such a tendency to reveal underlying misconduct as to justify investigation and discipline by the Commission. I would answer that question in the negative: Because the judge’s position, as revealed in his initial response to the Commission’s inquiry, had reasonably arguable merit, and because the Commission had no extrinsic evidence of bad faith, bias, abuse of authority, intentional disregard of the law, or any improper purpose, the Commission should have ended its investigation at the time of that response without any discipline.

The majority opinion {ante, at p. 397) rejects petitioner’s…