State DOJ’s motion to disqualify judge in Vallejo police reform case denied

VALLEJO – A Solano County Superior Court judge whom the state Department of Justice sought to disqualify from overseeing Vallejo police reforms has returned to the case after another judge rejected the Justice Department’s request.

Alameda County Superior Court Judge Michael Markman, who was temporarily sitting on assignment in Solano County, dismissed the Justice Department’s motion to disqualify Judge Stephen Gizzi from the Vallejo police reform case in an order on March 18. 

The Justice Department will now have to return to Gizzi’s court next week to argue why he should approve and enforce the Justice Department’s 67-page stipulated judgment with the city of Vallejo. 

The Justice Department had accused Gizzi of bias in the case. In November, Gizzi ordered a hearing for the Justice Department to argue why he should enforce the agreement. Gizzi objected to several elements of the agreement, including a plan to appoint an independent monitor and his role as a mediator in disputes between the Justice Department and the city. 

Gizzi then shared a Vallejo Sun article on LinkedIn reporting on the order, which led the Justice Department to seek his disqualification, saying that it demonstrated bias on Gizzi’s part because the post attracted numerous comments critical of the Justice Department. 

The case was delayed and temporarily reassigned to a different judge. But Markman’s March 18 ruling found that there was no cause to remove Gizzi.

“There is no evidence of bias by Judge Gizzi for or against any party or attorney involved in this case,” Markman wrote. “He has not commented or taken a position on a pending case, and the re-posted comment is a factual summary of a written order in the case that was published in a newspaper.” 

Attorney General Rob Bonta announced the stipulated judgment, also known as a consent decree, in October after the conclusion of a three-year contract with the city that started in 2020. 

Vallejo, in the midst of public controversy over a string of shootings and other violent incidents, was required to complete 45 reforms in three years. But by the end of the term in June, the city had completed only 20, according to Bonta.

The required reforms include numerous revisions to policy and training. The outstanding recommendations include finding a new police headquarters, adding more civilian staff, adding promotional opportunities and mentoring for female officers and racial minorities, assigning officers to beats, and establishing a police oversight model, which was passed by the City Council in 2022 but has not been implemented.

The new reforms include conducting an ongoing audit of incidents where an officer points a firearm and measures to reduce bias when officers stop and detain people by limiting the use of pretextual stops and placing limitations on when officers can search people during consensual encounters.

But in his November order, Gizzi wrote that he found portions of the reform agreement to be vague, contradictory, or unsupported by law, and indicated that he would not enforce large portions of it, including the proposed reforms of stops and searches. 

“This court was never asked if it was willing or able to take on this role that could potentially last up to 10 years,” Gizzi wrote. “Yet, without authority to do so, the commitment was made on behalf of the court.” 

In a response filed in December, the city and the Justice Department argued that the plan to appoint a monitor is authorized under California law and similar to other reform efforts that the Justice Department has conducted in Bakersfield and Kern County.

They also argued that Gizzi has limited discretion to refuse to enforce the judgment, which is essentially a contract between the city and the Justice Department, and that the police department voluntarily agreed to new restrictions.

In a separate filing, the Justice Department argued Gizzi should be disqualified from the case because he shared a Vallejo Sun article on his previous order on LinkedIn. The Justice Department argued that it constituted an ex parte communication and a violation of rules which require judges to remain impartial and prohibit them from publicly commenting on court proceedings.

Gizzi had reposted a post by Dave Blake, a retired police officer who operates a consulting firm that provides evaluations of police practices. Blake has previously worked for the city of Vallejo and prepared a report that found that officers acted reasonably when they shot Willie McCoy 55 times after he was found unresponsive in his car in 2019. 

The post only quoted the text of the Sun article, but spurred numerous negative comments directed at the Justice Department from former law enforcement officers.

“Even if the court did not intend to commit to a particular result, the damage is done,” the Justice Department stated in its filings. “If the court ultimately determines not to enforce the stipulated judgment, it will appear as though the court’s mind was made up before argument.”

Gizzi submitted his own response to the Justice Department’s request in January and said he found that the Sun article “fairly summarized” his order and “did not appear to favor one party over the other or advocate for a certain position.” He said that he did not notice any comments attached to the post.

Gizzi said that he called a judicial ethics hotline and received an opinion that he did not violate any judicial canon and was not required to recuse himself. He also removed the link to the Vallejo Sun article from his LinkedIn page, “to preclude further distraction in this case.”

But the case was temporarily reassigned to Presiding Judge Alesia Jones, who scheduled a case management hearing for March. Jones was not expected to keep the case, however, because she had a conflict of interest as she formerly worked in the Vallejo City Attorney’s Office.

The March hearing was canceled and Markman’s order denying the request to recuse Gizzi was filed  on March 18. Markman wrote that he was assigned the Justice Department’s request for disqualification in February.

“The article is a news article, not an opinion piece, and it describes Judge Gizzi’s order to show cause without opining on it,” Markman wrote. “The description of the underlying order to show cause indicates that the order expressed the court's then-current views, neither the comment nor the article about it appear to commit Judge Gizzi to any particular course of action in the underlying case.”

Markman did find that Gizzi should have monitored the comments on the post and alerted the Justice Department and the city in case they wanted to address or rebut them.

“Given the canons of judicial ethics, a judge using a social media platform open and  accessible to the public should monitor third party comments to avoid being associated with comments about pending cases, or seeming to express a bias for or against a party or position,” Markman wrote.

There has been little progress on the underlying reform case while the issue was resolved. Still, the Police Department has prepared for the required reforms by asking the city for $500,000 in sales tax revenue to pay for new training and the City Council recently allocated $2 million to progress a plan to rebuild the police headquarters.

The Justice Department will return to Gizzi’s court on Tuesday in Fairfield to argue he should sign and enforce the agreement.