Justice retires in face of allegations
The report painted a devastating picture of the 80-year-old justice’s conduct over the past decade
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.”