The Mercury News

Justice retires in face of allegation­s

The report painted a devastatin­g picture of the 80-year-old justice’s conduct over the past decade

- By Tracey Kaplan tkaplan@bayareanew­sgroup.com

SAN JOSE » Conrad Rushing, the powerful state appellate court justice who presided for 15 years over a sprawling district including San Jose, was facing allegation­s of bigotry, sexual harassment and discrimina­tion against women when he retired earlier this week, according to sources and an internal report obtained by this news organizati­on.

The confidenti­al five-page report commission­ed by the state Judicial Council painted a devastatin­g picture of the 80-year-old Sixth District Court of Appeal justice’s conduct over the past decade, concluding that he:

• Engaged in sexual conduct at work, including looking at nude images of women in his chambers

• Made overly personal comments about female employee’s appearance, attire and bodies, including on the length of a female attorney’s legs

• Remarked in a derogatory manner about Portuguese Americans and other groups on the basis of their ethnicity, national origin or religion

• Asked employees to perform personal errands for him

• Treated male lawyers who worked for the court more favorably than female attorneys

Rushing could not be reached for comment.

The Council’s report was produced in May, and Rushing

officially notified the governor on Oct. 31 of his plans to retire — 26 days after women and men across the country began to share experience­s about sexual harassment in the wake of the scandal surroundin­g film mogul Harvey Weinstein.

Such allegation­s have led to terminatio­ns, resignatio­ns and denials by other high-profile figures, including actor Kevin Spacey, Rep. John Conyers and Alabama U.S. Senate candidate Roy Moore.

After the report on Rushing’s conduct was produced by Sacramento law firm Ellis Buehler Makus, the state Commission on Judicial Performanc­e began its own inquiry. Sources familiar with the case said the Commission, which has the power to discipline justices, including removing them from office, came to the same conclusion as the Judicial Council, the state court’s policy-making body.

The report found that Rushing allowed male lawyers who worked for the court to telecommut­e, gave them more complex cases and didn’t subject them to comments about their appearance­s. Meanwhile, he had female lawyers pack his belongings before his apartment was fumigated.

Even male attorneys reported that the environmen­t was “dysfunctio­nal,” the report said. It noted former attorney with the court who was described as one of Rushing’s most valued employees was remorseful he did not speak up about his conduct.

The Sixth District is located in San Jose and has jurisdicti­on over Santa Clara, Santa Cruz, San Benito and Monterey counties. The court decides cases by randomly selected three-justice panels. There are seven justices in the Sixth District who decide more than 900 appeals annually and 500 requests for speedy interventi­on in a lower court’s decision.

Rushing’s retirement gives Gov. Jerry Brown another opportunit­y to put his imprint on the court, as he will appoint Rushing’s successor as well as fill another vacancy on the court.

Rushing, a former Superior Court judge in Santa Clara County, was appointed in 2002 by Gov. Gray Davis to the Sixth, then elevated by him in 2003 to be the presiding justice. He participat­ed in several significan­t decisions made by the appellate court.

In a 3-0 ruling in 2014, Rushing joined justices Franklin Elia and Eugene Premo in a decision that drew a line on public access to government records, ruling that government workers in San Jose and beyond can keep their communicat­ions private if they send them on a personal device like a cell phone. Rushing argued that the California Legislatur­e, not the courts, should determine which records are public.

In a 2013 ruling designed to establish legal precedent, a Sixth District panel including Rushing overturned a trial judge’s finding that a South Bay mother should be reported for child abuse for trying to resolve discipline issues with her 12-year-old daughter by spanking her so hard with a wooden spoon it severely bruised her.

“We cannot say that the use of a wooden spoon to administer a spanking necessaril­y exceeds the bounds of reasonable parental discipline,” Rushing wrote for the court.

Rushing was popular with many members of the criminal defense bar, less so with prosecutor­s.

“I am sorry to learn about Presiding Judge Rushing’s personal misconduct,” said Dallas Sacher, director of the Sixth District Appellate Program, which represents indigent clients. “In his capacity as an appellate jurist, Justice Rushing was a brilliant and fair-minded arbiter when it came to the rights of criminal defendants.”

 ?? STAFF FILE PHOTO ?? Conrad Rushing is the presiding justice at the California Sixth District Court of Appeal.
STAFF FILE PHOTO Conrad Rushing is the presiding justice at the California Sixth District Court of Appeal.

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