Verdict on chief justice’s letter: not unethical

When California Chief Justice Ronald M. George intervened in the search process for a dean for the new law school at UC Irvine, critics questioned the court’s involvement.

But legal scholars said last week that it is neither unusual nor unethical for high court judges to weigh in on candidates for public law schools, particularly when their views are sought.

The Times reported Sept. 15 that George provided a UC Irvine selection committee with a letter contending that candidate Erwin Chemerinsky, a Duke University law professor, had made a glaring error in an opinion piece he wrote for The Times.

George called it “a gross error.” Chemerinsky insisted that his work was accurate.

“If the justices sent a letter to UC Irvine with the goal of influencing the dean process, that is inappropriate,” Chemerinsky said when told of the letter.

“No, it is not inappropriate,” New York University law professor Stephen Gillers, an expert on legal ethics, said last week when told of George’s version of what had happened.

Santa Clara University law professor Gerald Uelmen also said it was not uncommon for a chief justice to weigh in on a law school appointment. In fact, he said he owes his deanship to the late California Chief Justice Rose Bird.

“One reason I was appointed dean at Santa Clara was because Rose Bird weighed in,” Uelmen said. “She told the president what a great dean I would make, and she was right.”

Amid the criticism from George and others, UC Irvine Chancellor Michael V. Drake withdrew Chemerinsky’s contract but later reinstated it after the hiring controversy ignited a national debate over academic freedom.

Chemerinsky’s Aug. 16 essay in The Times attacked a new federal law that would make it harder for death row inmates to have their cases reviewed in federal court. The regulation would permit the U.S. attorney general to determine whether states were complying with a 1996 law that said inmates would be given less time to challenge their convictions in states that met the law’s requirements for providing them with lawyers.

Chemerinsky wrote that only one state, Arizona, complied with the federal law’s provisions of legal assistance. That is true. But the story also implied that California provided nothing for death row inmates, which is not the case.

“Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise),” the article said.

Uelmen, who reviewed Chemerinsky’s essay, said it could be read in more than one way. “I don’t read this as broadly as George read it,” he said.

“The bottom line,” Uelmen said, “is that I think Erwin’s op-ed piece is a little bit ambiguous and could be read the way George is reading it. I suppose you could fault Erwin for being a little sloppy. . . .”

Chemerinsky last week called his essay “absolutely accurate” but said that it was difficult to explain “a very complicated topic” in 750 words and that the wording had to be read in the context of the federal law.

The fact that George weighed in on the dean selection surprised some scholars.

UC Irvine professor William Thompson, a lawyer who is an expert on forensic science, said it was “very disturbing” that a judge offended by someone’s scholarly work could affect such a decision. But he said he did not believe George was acting inappropriately if he simply responded to a request for comment and also sent the letter to Chemerinsky.

Chemerinsky’s article appeared in The Times the same day that UC Irvine informed him he would be its first law school dean. In private conference, the entire California Supreme Court discussed the article and decided to have the clerk of the court send a letter complaining about the essay to The Times and to Chemerinsky, George said.

Asked whether he believed the chief justice’s action was proper, Chemerinsky said, “I am not going to answer that question.”

“Frankly, I was shocked when I heard he was involved because I always thought I got along well with him,” Chemerinsky said. “My hope is that whatever happens here, Ron George and I go forward as colleagues and even friends, and I can engage his support for the UCI School of Law.”

The court’s Aug. 24 letter to The Times apparently was lost at the newspaper and didn’t make it to the opinion pages, where Chemerinsky’s article had appeared, or to the paper’s readers’ representative, who looks into complaints of inaccuracies. The paper has since received and printed a copy of the letter.

Chemerinsky said he did not receive the court’s letter. “Maybe it is floating around the Duke mailroom,” he said.

On Sept. 6, George received a letter from a UC Irvine selection committee inviting comment, he said. The chief justice called one of the committee members, told him about Chemerinsky’s article and the court’s response, and sent him copies of both. George said he did not call anyone else about Chemerinsky.

Gillers, one of the country’s top legal experts, said the chief justice behaved appropriately.

“If George is asked -- and that is important, because appearance makes a difference -- if he is asked about any information he has about a candidate, and he has what he believes is relevant information, not only can he provide it, he should provide it,” Gillers said.

“It is important to the work of the public institution that is making this decision.”

Gillers said that “judges at every level, especially high court judges,” are often asked for their opinions about candidates for jobs.

“On the appearance level, it is important that George was asked,” he said. “He didn’t start a campaign against Chemerinsky, which would be improper.”

Stanford University law professor Deborah Rhode, director of the Center on Ethics there, said George’s involvement was “clearly not a violation of any ethical standards.”

But under the state judicial ethics canon, he is obliged not to create an appearance of impropriety and perhaps should have consulted the entire court before providing the letter to the Irvine committee, she said.

“The appearance of impropriety is very much in the eye of the beholder, and different people could take a different view on the facts of this case,” Rhode said.

That George was perturbed by Chemerinsky’s essay was not surprising to those aware of his efforts to find lawyers for death row inmates and secure funding for their compensation.

“He has been very directly and personally involved in recruiting lawyers and doing handstands to get the money to run the Habeas Corpus Resource Center,” which represents death row inmates, said Uelmen, an expert on the state high court. “So he might have taken personal affront at somebody suggesting we weren’t providing counsel.”

Despite George’s efforts, 88 inmates on death row have no lawyer either for their mandatory direct appeal or their habeas challenges, which involve investigating matters that did not come before the trial court. Nearly 200 inmates have lawyers for their direct appeal but not for habeas cases.

Defense attorneys blame the lack of lawyers for the state’s death row inmates on the relatively little money such lawyers are given to work on the complicated, life-and-death cases.

George said the $145 hourly rate paid to such lawyers in California is the highest of any state but less than the federal courts provide. “We try to pay more, but we need to get money from the Legislature, and I lobby the Legislature every year,” he said.

On Thursday, Chemerinsky called George and said he regretted that his essay might have created a misimpression, looked forward to good relations with the state’s highest court and invited George to be the new law school’s first commencement speaker in 2012.

George accepted.

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maura.dolan@latimes.com