Lassen County Superior Court Judge Tony Mallery, right, debates former Lassen County District Attorney Robert Burns in October 2012. File photo

Mallery faces charges of ‘willful misconduct in office’ from Commission of Judicial Performance

This morning, Thursday, Sept. 15, the Commission on Judicial Performance announced it has instituted formal proceedings concerning Lassen County Superior Court Judge Tony Mallery.

The commission charges Mallery with “willful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and improper action within the meaning of article VI, section 18 of the California Constitution providing for removal, censure or public or private admonishment of a judge or former judge.”

According to a court insider, Mallery has not heard a case in Lassen County Superior Court since March.

The charges are allegations and not proven findings. According to the announcement, “The commencement of formal proceedings is not a determination of judicial misconduct,” and Mallery’s answer to the commission is due by Sept. 29.

Special masters appointed by the California Supreme Court will conduct a hearing. After the hearing they will provide a report to the commission, and, “If the commission determines that the charges are proven by clear and convincing evidence, it is empowered to remove, censure, publicly admonish or privately discipline the judge.

“Charges that the commission determines are not proven will be dismissed. A determination by the commission to remove, censure, or admonish a judge is subject to discretionary review by the Supreme Court upon petition by the judge.”

The commission is composed of six public members, three judges, and two lawyers.

Notice of formal proceedings
The Commission of Judicial Performance issued a 21-count, 49-page Notice of Formal Proceedings regarding Mallery Monday, Sept. 12.

According to that notice, “Preliminary investigation pursuant to Rules of the Commission on Judicial Performance, rules 109 and 111, having been made, the Commission on Judicial Performance has concluded that formal proceedings should be instituted to inquire into the charges specified against you herein.

“By the following allegations, you are charged with willful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and improper action within the meaning of article VI, section 18 of the California Constitution providing for removal, censure or public or private admonishment of a judge or former judge.”

The allegations include: During a commission investigation of Mallery the judge allegedly threatened to terminate and discouraged court employees who cooperated, and hired a law firm to investigate those employees after the commission had concluded its investigation; later Mallery allegedly told the commission the court was not investigating the commission’s investigation; Mallery allegedly purchased a unneeded and inappropriate storage container from Lassen Rents, a business owned by his brother; Mallery issued a decision regarding mental health diversion that was denied, reflecting “bias, prejudgment and a refusal to exercise your judicial discretion;” Mallery failed to timely disqualify himself as required by law; Mallery retaliated or made improper comments to or about attorneys filing disqualifications of peremptory challenges against him; Mallery retaliated against an attorney who filed statements of disqualification against him; Mallery made comments to other judges that might interfere with a fair trial or hearing; Mallery’s conduct gave the appearance the judge made a ruling due to an attorney’s withdrawal of a petition to strike a preliminary challenge; Mallery abused authority and violated judicial ethics; abdicated judicial responsibility to evaluate plea agreements and made improper remarks that reflected a blanket refusal to accept plea agreements with negotiated sentences; abandoned his role as a neutral factfinder and usurped the prosecuting agency’s discretionary authority; engaged in speech that would reasonably be perceived as bias or prejudice based on race national origin and ethnicity; engaged in conduct that could reasonably be perceived as bias, prejudice or harassment based on sex or gender; engaged in poor demeanor toward court staff; made disparaging remarks about a fellow judge and a court employee; abused his authority; failed to disqualify himself or disclose information in a timely manner; and participated in fundraising efforts for an organization that frequently appeared before him in court.

Lassen News sought comment from Mallery, but we did not receive a response by deadline.

The commission’s documents can be found at cjp.ca.gov/wp-content/uploads/sites/40/2022/09/Mallery-NFP-PR-9-15-22.pdf?emrc=b62615 and cjp.ca.gov/wp-content/uploads/sites/40/2022/09/Mallery_NFP_09-12-22.pdf?emrc=8ad89a.