A San Diego judge got paid when he didn’t work. He hasn’t been told to pay it back.

For more than 18 months, San Diego Superior Court Judge Howard Shore worked a four-day week, almost never showing up on Fridays at his courtroom on the 21st floor of the downtown San Diego Superior Court Central Courthouse. 

He missed other days too — an astonishing 155 unauthorized absences over 2021 and 2022. His absences caught up with him in December when the Commission on Judicial Performance, the opaque state agency in charge of handing out discipline to California’s 1,800 judges and justices, announced a severe public censure of the veteran jurist for “persistent failure to perform judicial duties.”

Public censure is the second-most significant discipline the commission can levy — just one step below removing Shore entirely from the bench. 

In fact the commission initially wanted to do just that, but later backed off, according to comments Shore made to two lawyers who spoke with him before the discipline was made public, and related the comments in a court filing. 

While a public censure from the commission is a black mark on a judge’s record, it is the only penalty Shore has received. 

Despite receiving full salary for the days he did not work over that period of time, he has not been required to repay the money he was paid for the days when he was not working — which one calculation estimated to be as high as $146,000 and no less than $82,000.

That is because there appears to be no mechanism in state law or procedures that would allow the state to demand repayment from a judge. The only remedy may be prosecuting the judge and upon conviction getting a restitution order formally requiring the money to be paid.

But there appears to be no such effort underway.

While the commission can refer a case to local authorities for prosecution, its executive director declined to say if it did so in this case — citing the confidentiality that shrouds much of the commission’s work. 

A spokesperson for San Diego District Attorney Summer Stephan said the office did not receive any referral from the commission – and declined to say whether the office was investigating Shore. 

The state Attorney General’s office did not respond to a query about whether it is examining the case. 

The fact Shore has not been required to pay back the public funds has irked members of the criminal defense bar, who did not want to speak on the record out of concern that criticizing a sitting judge could rebound against their clients. 

The CJP concluded that Shore did not work 155 days over the course of 2021 and 2022, based on key card data recording the days he entered the courthouse, as well as phone records from his chambers. That included every Friday from May 2021 to November 2022, the commission said.

Assuming he used all his vacation as well as court holidays, the commission said he still missed 87 days of work while getting paid. That would be nearly one of every five work days, or about 18%. 

Though many lawyers did not want to speak publicly, in a court filing the Office of the Public Defender laid out its case against Shore in brutally direct language. 

Deputy Public Defender Jeremy Thornton calculated that a Superior Court judge is paid $943 per day, based on current salary of about $232,000 annually. At 155 days of being paid when not actually at work and not authorized to take time off, that comes to $146,000. 

At the lower number of 87 days of unauthorized absences, it comes to $82,000, he wrote. 

The calculation is not exact — it does not take into account other benefits judges receive, such as a nearly $600 monthly car allowance, and does not use the slightly lower pay rate that was in effect in 2022.

Regardless, Thornton argued the overall point was clear. “It is hard to imagine,” he concluded, “a world where this is not theft as defined by the Penal Code.”

Key cards and phone records

Shore, who has been a judge in San Diego since 1990, wrote in a statement to inewsource that he “sincerely apologizes” for his conduct. And he said he has not been contacted by any law enforcement agency.

The judge also said that he contacted the state Judicial Council, the policy-making and administrative arm of the court system. He asked if there was a way to pay back a portion of his salary or get a reduction in pay or vacation time.

Shore said he was told “a situation like this had not been presented before and they were unaware of a way to do this.” 

Blaine Corren, a spokesperson for the Judicial Council, confirmed that Shore had spoken with the staff there and “we are not aware of any authority that would allow the Judicial Council to take back judicial salary paid under these circumstances.”

In his statement, Shore said that he did not go to work Fridays because he had to attend to a health situation with a family member in Los Angeles, and as an Orthodox Jew could not travel after sunset Friday. So he would leave for L.A. Friday morning, rationalizing that he took work home at night and was able to complete his work the other four days of the week. 

He also refuted the charge he had committed grand theft or misappropriation of public funds. He said the commission’s censure “contained no findings of criminal liability.” 

Further he cited a March ruling by a judge in Orange County who concluded there was “no evidence” he committed theft. 

That ruling was one of several stemming from motions filed by leaders of two of the offices of the Public Defender that sought to remove Shore from hearing cases under the Racial Justice Act, which allows defendants to challenge charges on the grounds that the prosecution is motivated by racial bias. 

In a sworn declaration, two leaders of the office said Shore made racially biased comments to them during a meeting weeks before his censure was announced. In arguing he should be banned from hearing such cases, lawyers also brought up the censure — contending it showed Shore had committed theft and was a liar. 

The Orange County judge disqualified Shore from hearing some cases under the Racial Justice Act, but not all where he was challenged.

Rarely charged

While prosecutions charging theft or misappropriation of public funds are not common, defense lawyers point to the recent convictions of Jesus Cardenas, once chief of staff for San Diego Councilmember Stephen Whitburn, and his sister, former Chula Vista Councilmember Andrea Cardenas. The siblings admitted to grand theft for collecting about $200,000 in federal and state COVID-19 relief and unemployment funds.

Both were also ordered to pay restitution. Both of their lawyers declined to comment.

Prosecutions for taking public money can be brought under various laws, like grand theft, theft by false pretenses, or misappropriation of public funds. 

The District Attorney’s office has filed 25 cases alleging misappropriation of funds and grand theft since 2013, according to a list of cases provided by the office. 

The San Diego City Attorney, which charges misdemeanor cases in the city limits, has filed four cases of theft by false presences in the past decade, a spokesperson for the office said. 

Available case files — many of the cases were sealed — showed that the charges were for embezzling funds from a public agency, or purchasing goods with a government credit card and reselling them, or defrauding a government loan program. 

One woman pleaded guilty in 2017 for stealing $12,913 from the county of San Diego, but the file provides no further details. In 2016 another woman pleaded guilty to grand theft and paid $10,986 to the Economic Development Department of the state.

In nearly all the cases restitution was ordered as part of a plea bargain, the files show. 

No-shows on the bench

Other state agencies which oversee professions, such as the State Bar of California for lawyers, can order restitution as part of disciplinary proceedings. 

Not so for judges. “The commission doesn’t have the authority to order restitution,” said the commission’s director and chief counsel, Gregory Dresser. It also can not fine judges.

Over the years other state judges have been disciplined for unauthorized absences, or what the commission refers to as “nonperformance of the judicial function/attendance/sleeping.”

The commission’s records show 13 judges disciplined for that violation since 1983. Those records cover only public discipline: The commission issues many private disciplinary letters which are, by law, confidential. 

The cases describe a variety of ways some judges shirked their duty. In 2009 a Riverside County judge was cited for leaving work before noon nearly every day for most of 2007 and 2008. He agreed to resign after being censured. The commission noted his “routine of working part-time while being paid a full time salary is utterly unacceptable…”

Other judges were punished for regularly missing portions of days — coming in late, taking long lunch breaks, then leaving early. One L.A. judge simply stopped working for close to a year, and though he blamed a medical condition, he was removed from the bench for that and numerous other transgressions.

In 2023 the commission received 1,570 complaints about judges. The vast majority of them were resolved after an initial review that showed no judicial misconduct, according to the annual report on the commission’s work. 

Just 34 complaints resulted in some form of discipline, and most of those were handled privately — via an advisory letter or private admonishment. Neither of those types of discipline are public. 

Shore’s was one of five cases that resulted in public discipline, and one of two judges who received a public censure. The other three were publicly admonished, a lesser punishment than censure. 

Since the discipline was handed down Shore has continued to work at the downtown courthouse. He was recently reassigned from a courtroom hearing criminal matters to one dealing with civil cases with less than $25,000 at stake.