Orange County Judge Could Escape Hearing

The state Commission on Judicial Performance announced Tuesday that it will drop formal proceedings against Orange County Municipal Judge Brian R. Carter when his resignation becomes effective next month on the condition that he not seek judicial office again or accept any appointment or assignment to the bench.

Carter’s decision to retire in mid-February from Harbor Municipal Court in Newport Beach was disclosed Monday. It follows 4 years of investigations of Carter and Harbor Municipal Judge Calvin P. Schmidt, first by Newport Beach police and the district attorney’s office, and then by the state judicial commission.

The investigations reportedly have centered on allegations that Carter and Schmidt misused their positions to help friends and to curry favor with prostitutes.

Carter, who has denied any wrongdoing, said in a written statement that he had no plans to return to public office.

“I am not willing to live in the fish bowl which (the) public now seems to require. . . . Remaining on the job doesn’t seem to be worth it,” the statement said. “So I leave with no regrets. It has been rewarding.”

Schmidt, who in the past has said he welcomes the opportunity to exonerate himself at an upcoming commission hearing, declined to comment when contacted Tuesday.

Carter, 63, could not be contacted for further comment Tuesday. But he told friends and associates that he was retiring in part because he suffers back problems that make sitting in court for long periods painful and because he is tired of all the negative publicity that has surrounded him in recent months.

Carter’s decision to resign came 3 weeks after the judicial commission sent him a list of the formal charges against him, commission investigator Peter Gubbins said Tuesday.

Gubbins would not reveal the details of those charges but said evidence would have been presented at the hearing by two officers from the attorney general’s office had the proceedings not been dropped.

Among the evidence in the commission’s possession are transcripts of two tape-recorded conversations--one between Carter and a prostitute who has accused him of a sex-for-favors exchange and one between Carter and a former client and golfing partner who sought his help in getting out of jail.

Although judicial commission hearings have always been held behind closed doors, a statewide initiative approved in November forced the commission to consider whether the Carter and Schmidt hearings should be public, Gubbins said. Proposition 92 permits the judicial commission to open hearings to the public if the charges against a judge involve moral turpitude, dishonesty or corruption.

Gubbins said no decision had been made about when Schmidt’s hearing will be held or whether it will be public. Gubbins said the hearing would be conducted “expeditiously,” though, and added that his office was in the process of drafting disciplinary charges against Schmidt.

The announcement that charges against Carter will be dropped came in a written statement by Jack E. Frankel, director-chief counsel for the judicial commission.

Carter told former presiding Harbor Municipal Judge Russell A. Bostrom on Monday that his resignation would be effective Feb. 19 and that he was applying to the California Judge’s Retirement System in Sacramento for retirement.

In light of Carter’s decision to step down, Gubbins said, commission members believed that it was pointless to go ahead with the hearing on the charges against him.

“Because commission hearings are lengthy and expensive to the state of California, the commission has determined that this disposition is in the public interest,” Frankel’s statement said.

Had it found any of the allegations against Carter to be true after a formal hearing, the commission could have recommended to the state Supreme Court that he be censured, severely censured, suspended or removed from office. The commission also is empowered to impose “private discipline,” Frankel’s statement said.

The commission is made up of five judges, two lawyers and two public members.

At a commission hearing, evidence includes testimony, and special masters appointed to hear the case make findings regarding the charges. The accused judge is entitled to be represented by counsel at the hearing and can call his own witnesses, introduce evidence and cross-examine witnesses against him, according to Frankel’s statement.

A source close to Carter told The Times that Carter sent a letter to Gov. George Deukmejian on Friday, tendering his resignation. The day before, in an interview with a Times reporter, Carter denied reports that he would resign before his commission hearing.

In fact, he vowed to fight the allegations against him at the hearings. He had hired a noted Orange County trial lawyer and former judge, Byron K. McMillan, to represent him.

Carter was appointed to the Harbor Court bench in 1982 by Gov. Edmund G. Brown Jr. Before that, he was involved in a private law practice.

Had Carter not resigned, he faced the possibility of losing his license to practice law, Gubbins said. That, according to Gubbins, is because the state Supreme Court specifically considers whether the license of any judge who has been disciplined should be returned when he or she leaves the bench. Judges surrender their State Bar cards until they return to private practice.

The state judicial commission would, however, cooperate in any ethics investigation that the California State Bar Assn. might launch against a judge who was the target of disciplinary proceedings, Gubbins said.

State Bar spokeswoman Anne Charles said Tuesday that Carter’s bar record shows no public record of discipline and, as far as she knows, he is not the subject of any ethics investigation. The State Bar has an ethics branch which investigates California lawyers accused of ethical malfeasance.

Carter said in his statement that he might return to private practice as a volunteer attorney handling cases for the indigent. He said that because he also has a degree in engineering, he may also do some consulting in the product-liability field.

For now, though, Carter said, he is just interested in spending more time with his family.

“The time has come for me to throttle back and operate at a less-hectic and less-burdened pace,” his statement said.

Before Carter does anything, he might have to undergo surgery for disc problems in his back, McMillan, his attorney, said. Carter’s back has become so inflamed in recent months that he has had to use a pillow to ease the pain while sitting on the bench and could not remain there for long periods, McMillan added.

In light of those problems, McMillan said, it is likely that Carter will not return to the bench and instead may take vacation time until his retirement date arrives next month.

At Harbor Court on Tuesday, Carter’s decision seemed to have come as no surprise. One judicial source said Carter was more upset about the continued publicity surrounding him than the prospect of a commission hearing.

“I don’t know if he felt it mattered what the commission did or didn’t do,” said the source, who spoke on condition of anonymity. “The publicity so adversely affected him.”

Carter’s resignation will leave Harbor Municipal Court with seven judges and two commissioners to handle criminal and civil cases for an area that includes Newport Beach, Costa Mesa and Irvine. It may take up to 4 months for the governor to name a replacement for Carter, according to Deukmejian aide Tom Beerman.

Beerman explained the process this way:

First, the governor’s office reviews a confidential list of applicants for judgeships already on file and narrows the field to about a half-dozen names. Then those names are forwarded to the State Bar Assn., which has up to 90 days to evaluate the judicial candidates. After that, the governor generally makes an appointment within 2 to 4 weeks.

The appointee will be up for election next year.

In a written statement, Harbor Court Presiding Judge Glenn A. Mahler said Tuesday that “the judges of the Orange County Harbor Municipal Court hope that the governor will act expeditiously to fill the vacancy.”

At least three other Harbor Court judges, Russell A. Bostrom, Susanne Shaw and Selim Franklin, are under investigation by the state judicial commission on other matters, according to sources.