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THE COMMISSION ON JUDICIAL PERFORMANCE INVESTIGATES
SONOMA COUNTY SUPERIOR COURT JUDGE ELAINE M. RUSHING
FOR WILLFUL MISCONDUCT IN OFFICE

by Virginia McCullough

On February 21, 2006 The Commission on Judicial Performance issued a press release announcing it had instituted formal proceedings effective February 3, 2006 to investigate Judge Elaine M. Rushing of the Sonoma County Superior Court.  The Commission notes that the commencement of formal proceedings is not a determination of judicial misconduct.  The press release states:

The formal proceedings concern allegations that the judge (1) was convicted on a plea of no contest of the crime of driving while having a 0.08 percent or higher blood alcohol level with an enhancement for a blood alcohol level of 0.20 percent or more; (2) engaged in a court of dishonest conduct in an effort to avoid being arrested; and (3) repeatedly invoked her judicial office and that of her husband in an effort to avoid being arrested and to otherwise receive preferential treatment. It is alleged that these actions constitute willful misconduct in office, conduct prejudicial to the administration of justice that brings the judicial office into disrepute and improper action.

Judge Rushing was appointed to the bench in 1992 by then Governor Pete Wilson when she was known as Elaine Watters, her previous married name.  She had the distinction of being one of the first females to serve on the Sonoma County bench.  She was elected to a third six-year term in 2004.

During her tenure on the bench Judge Rushing has spent most of her career presiding over criminal cases.  In 2004 Rushing presided over three very high profile drunk driving cases that resulted in fatal injuries to bicyclists.  She imposed the longest sentences allowed by law in each instance.

In August 2004, Rushing imposed a 14-year sentence of William Michael Albertson, 46, who was convicted to running down Daniel O'Reilly. Prosecutors had charged Albertson with manslaughter and fleeing the scene of an accident.

In September 2004 Rushing heard the case of 69-year-old attorney Harvey Hereford who had pled guilty to felonies that included manslaughter and driving under the influence with a blood alcohol of 0.29.  Rushing sentenced Hereford to eight years and eight months in prison for the death of Alan Liu and for paralyzing Liu's riding companion.

In October 2005 a jury convicted David Espino of second degree murder and five other charges stemming from a hit and run collision that took the life of Mountain View resident Jim Dein and severely injured his friend Ted Aberg of Palo Alto on Highway 9 in February 2005.  Espino was high on PCP and the time and was driving without a license.  Although he was a tragic figure, a man with a minimum education working two jobs to support his family, Espino faced sentencing by Judge Elaine Rushing of 15 years to life.

Judge Rushing was transferred to the civil division in April 2005 under a normal rotation schedule.

The incident that precipitated the Commission's actions occurred on Tuesday, June 21, 2005.  Judge Elaine Rushing was apparently driving home alone in her Porsche when she collided with a wall at 5571 Crystal Drive in Santa Rosa.  She damaged the wall and left the scene without notifying either the property owners or law enforcement.  She continued driving on two flat tires for approximately two miles until she drove her car into a ditch on Riebli Road in Sonoma County.  No other vehicles were involved in any of the incidents.  About 10:45 p.m. a California Highway Patrolman arrested Rushing, 57 for driving under the influence.

The Sonoma County District Attorney quickly turned Rushing's case over to state Attorney General Bill Lockyer because Judge Rushing is a sitting judge who is well known in the small criminal justice community of Sonoma County.  The case was handled by Deputy Attorney General Joyce Blair out of the San Francisco office.

On August 9, 2005 Judge Rushing through her attorney Harry Allen, pled no contest and was sentenced to 10 days in jail and mandatory alcohol counseling to resolve the drunk driving charge.  As a first time offender who also presented a jail security problem, it was likely that Judge Rushing  participated in a work release program instead of serving jail time.  Rushing also was sentenced to three years informal probation.

Deputy AG Blair stated that a second drunk driving charge and one count of hit and run were dismissed.  Judge Rushing paid the owners of the damaged wall $300 and incurred fines and court fees of about $1,900.  Blair indicated that the plea agreement included typical elements and was not offered to Rushing because of her position.  Blair insisted in response to questioning by the media that "Elaine Rushing was not provided any special treatment by our office".

While not attending the court hearing, Judge Elaine Rushing issued an "open apology to the residents of Sonoma County" that read in part:

This mistake was my own serious misconduct for which there is no excuse and for which I admit total and sole responsibility.... These events have left me with unbearable heartache at the disappointment I have brought to the community here in Sonoma County, my colleagues on the court and my family and friends.

This was the final disposition of the criminal case against Judge Rushing. However, it was also noted at the time that Rushing might still fact disciplinary action from the state Commission on Judicial Performance, the entity responsible for investigating judges' conduct.

The actions taken this week by the Judicial Commission listed three specific counts as follows:

COUNT ONE

On the night of June 21, 2005, in Sonoma County, California, you committed the crimes of driving while under the influence of alcohol in violation of Vehicle Code section 23152(a) and driving while having a 0.08 percent or more, by weight, or alcohol in your blood in violation of Vehicle Code section 23152(b). You had a blood alcohol level of 0.20 percent or more. On August 8, 2005, upon a plea of no contest in Sonoma County Superior Court case number SCR-469285, you were convicted of violating Vehicle Code section 23152(b) with an enhancement under Vehicle Code section 23578 (for a blood alcohol level of 0.20 percent or more).

Your conduct violated the Code of Judicial Ethics, canons 1 and 2A.

COUNT TWO

In an effort to avoid being arrested for crimes related to your drinking and driving referenced in count one, you engaged in a course of dishonest conduct, as follows. While driving under the influence of alcohol on June 21, 2005, you collided with a wall at 5571 Crystal Drive in Santa Rosa, causing property damage. You left the scene without notifying law enforcement or the property owners, and continued driving for approximately two miles until you drove your car into a ditch on Riebli Road in Sonoma County. When a passerby stopped her car and asked if you were all right, you told her to leave. When a second driver stopped and offered to call for help, you said "we're fine" (even though you were alone) and told her not to call anyone. You also falsely told her that your husband was with you.

Having been notified by someone other than you, California Highway Patrol (CHP) officers and other emergency personnel arrived at the scene at Riebli Road. When Firefighter Ramos found you sitting in the driver's seat, you falsely told him that you had not been the driver. You said that an unknown woman had been the driver, and then that an unknown man had been the driver. When Firefighter Ramos asked you where the keys to the car were, you said that the male driver had taken them when he fled the scene up a nearby hill.

When CHP Officer Holeman arrived on the scene as the investigating officer, he asked you what had happened. You falsely told him that you had not been the driver. You said that there had been two other people in the car with you, a man and a woman, and that the man had been driving. You said that you had met them at a friend's house, but did not know their names. You said that you had been sitting in the back seat (even though the car had no back seat). When Officer Holeman asked you where the keys to the car were, you first told him that you thought they were in the car, then said that the male driver had taken the keys with him when he and the woman left the scene on foot, walking back toward the friend's house. You said that you had let the man drive your car because he and the woman were going to give you a ride home and then drive your car back to the friend's house. When Officer Holeman asked you how much alcohol you had consumed, you first answered "two bottles," then said "two glasses." When he asked you what you had been drinking, you asked him why he was asking and again asserted that you had not been driving the car.

You conduct violated the Code of Judicial Ethics, canons 1 and 2A.

COUNT THREE

At the scene on Riebli Road, referenced in count two, and while being transported from that scene, you repeatedly invoked your judicial office, and that of your husband, in an effort to avoid being arrested for crimes related to your drinking and driving and to otherwise receive preferential treatment, as follows.

You identified yourself to Firefighter Ramos by showing him your Sonoma County Court Judge identification badge.  When you were asserting your false story that you were not the driver to Officer Holeman, you repeatedly told him that you were a superior court judge in Sonoma County.  You also repeatedly requested that Officer Holeman call your husband who, you informed the officer, was an appellate court justice.

When Officer Holeman told you that he had determined that you had in fact been the driver, and that he needed you to answer some questions and perform some field sobriety tests, you responded to the effect of, "but I' m a judge, and I told you I wasn't the driver." You then declined to answer any more questions and declined to perform any field sobriety tests.

When Officer Holeman placed you under arrest for driving under the influence, you persisted in telling him that you were a superior court judge.  You told him that because you were a judge he should not be arresting you.  You also repeatedly requested that he call your husband, the appellate court justice.

When you were handcuffed and placed in a patrol vehicle, you began complaining about the handcuffs and asked Officer Holeman if he had seen your superior court judge identification badge.  You asked him if he knew you were a judge.  You told him that he did not need to be doing what he was doing and that he could remove the handcuffs.  Officer Holeman explained that they could not be removed, pursuant to CHP policy.  You then said that the handcuffs were too tight.  Officer Holeman helped you out of the car, checked the handcuffs himself and had another CHP officer check them to confirm that they were not too tight and had been placed on you in a manner consistent with CHP policy.

You were helped back into the car, and when Officer Holeman was transporting you to a CHP office, you repeatedly told him that he should remove the handcuffs.  Officer Holeman again advised you that he could not do so, pursuant to CHP policy.  You then told Officer Holeman that in your courtroom you go against court policies for CHP and other officers, and that he should extend that courtesy to you. You persisted in telling Officer Holeman that you were a superior court judge and that your husband was an appellate court justice.

Your conduct violated the Code of Judicial Ethics, canons 1, 2A and 2B(2).

The Commission then informed Judge Elaine Rushing that she had twenty days from the date the complaint was served on her to file a written answer.

Victoria Henley, Manager of the Commission on Judicial Performance said that it normally takes about two weeks for the Supreme Court to name a panel of Special Masters to sit in judgment on Judge Elaine Rushing.  In the meantime it can be surmised that Rushing will be wondering just how she ended up being in the same position as many of the defendants who have appeared before her over the years. Perhaps Judge Rushing will also remember the words of attorney Mark Arnold who speaking on behalf of his client David Espino, said, "I think the public is just fed up with people who drive under the influence and injure or kill people."

Judge Elaine Rushing can be very thankful that her wayward actions on the night of June 21, 2005 caused no injury or death to any innocent person.  She should be grateful that California Highway Patrol officers who cannot be compromised monitor our highways every day. She should also be ashamed that she cast a shadow on the good name of her husband and tainted her position of trust by attempting to use the influence of "Judge" or "Justice" to evade responsibility for her own actions.  Hopefully she will accept the decision of the Special Masters with the same grace and humility she demonstrated in her no contest plea for driving under the influence.

Virginia McCullough © 2/22/06