Probe Judge’s Conduct in Secret, Lawyer Asks

In a test case for the confidentiality of judges suspected of wrongdoing, an attorney for Calvin P. Schmidt argued Thursday that an investigation of the Municipal Court judge should be held behind closed doors.

But state attorneys, debating a case that could help set legal precedent under a recently enacted voter initiative, countered in court that the public has a legitimate need to know details of Schmidt’s alleged abuses as a Harbor Municipal Court judge.

The opposing sides will now have to wait until at least next week for a resolution to the closely watched dispute. Superior Court Commissioner Ronald L. Bauer will then make an advisory ruling on whether to open a scheduled August hearing by the state Commission on Judicial Performance.

Acting Presiding Judge James L. Smith is then to issue a final decision, based on Bauer’s recommendation.

The case is the first in the state to test the power of the state Commission on Judicial Performance to open its hearings into alleged improprieties, lawyers in the case said.

In its 28-year history as the state’s official investigative arm for matters of misconduct among California’s more than 1,400 judges, the judicial commission had long been criticized for operating in secret and denying the public information of known wrongdoing that could have affected the outcome of local judicial elections.

But Proposition 92, passed by voters in 1988 and now the subject of scrutiny in the Schmidt case, allowed the commission to make its proceedings public for the first time in issues of alleged moral turpitude, dishonesty or corruption.

Schmidt’s attorney, H. Warren Siegel of Irvine, did not question the constitutionality of Proposition 92 in arguing before Commissioner Bauer Thursday, but he did take the state commission to task for allegedly abusing its authority by failing to adopt guidelines for implementing the initiative.

And in a letter to the commission filed with the court, Siegel maintained that the “unnecessary opening” of the judicial proceedings threatened to “undermine public confidence in the judicial system rather than improve it.”

But Deputy Atty. Gen. Roy W. Hewitt, arguing against the closing of the hearings, argued before Bauer that the Superior Court has no business hearing the dispute to begin with, since it is a question that should be left to the state Supreme Court.

And even in the event that the Superior Court can decide the issue, Hewitt maintained that Proposition 92 clearly gives the commission the authority to open the hearings.

Quoting from the initiative, Hewitt said in written arguments filed with the court: “Every public official, no matter how high the office, must ultimately be accountable to the public.”

Schmidt, a 23-year veteran of the bench, did not attend Thursday’s hearing, but Brian R. Carter--the former Harbor Court judge who has been linked along with Schmidt to allegations of judicial favoritism--did make an appearance.

Smiling and chatting amiably with contacts in the legal community, Carter said of the hearing: “I just thought it might be of interest,” but he refused to comment further on the scandal that some have suggested led to his abrupt departure from the bench in February.

“I’m just enjoying my retirement now, relaxing,” he said with a laugh. “I’m not newsworthy anymore--no one cares about me.”

The Commission on Judicial Performance, while announcing that it intends to hold public hearings on its investigation into possible misconduct by Schmidt, has refused to specify the allegations against the judge.

Sources quoted in media reports have said that the investigation centers on allegations of favoritism in exchange for sex involving both Schmidt, 59, and Carter, 63. The judicial commission dropped its investigation of Carter upon his retirement.

Siegel, in an interview after the hearing, maintained that “irresponsible” and inaccurate reporting in the press of these allegations has in large part prompted the current dispute over the open hearings and offers good reason why the proceedings should be kept closed.