Court Rejects Bid to Open Hearing on Judge

The California Supreme Court on Thursday rejected a state commission’s precedent-setting attempt to hold a public hearing into charges that an Orange County judge improperly gave favorable treatment to a prostitute and others in court.

The justices left intact two lower-court rulings that blocked a bid by the state Judicial Performance Commission to hold an open hearing on the allegations under a state constitutional amendment approved by the voters last fall.

The measure, known as Proposition 92, permitted the commission to make public its heretofore-confidential proceedings in misconduct cases involving moral turpitude, dishonesty or corruption.

But lawyers for the jurist, Municipal Judge Calvin P. Schmidt, filed suit to keep the hearing closed, saying that open proceedings could cause “irreparable injury” to the judge. The attorneys contended that the commission could not open its proceedings until the state Judicial Council, the rule-making arm of the judiciary, adopted guidelines to implement the amendment. The commission argued that there was no need for guidelines because the amendment was self-implementing.

In June, Orange County Superior Court Judge James L. Smith Jr. upheld Schmidt’s claim and ordered the hearing closed. A state Court of Appeal later refused to overturn the decision.

The commission then took the case to the state Supreme Court, contending that a closed hearing would undermine public confidence in the judiciary. Schmidt’s case, as the focus of widespread public attention and controversy, presented a “classic example” of the need to hold a prompt and open proceeding, the commission said.

The agency contended also that the lower courts had no authority to close the hearing and that permitting one Orange County judge to act in the case of another Orange County judge could give the public the impression that “the fox is guarding the henhouse.”

Schmidt’s lawyers said that despite the amendment, the commission still needs specific rules from the Judicial Council to guide it in determining when to open commission proceedings. Allowing the commission “unfettered authority” in making such determinations would open the way for a “star-chamber proceeding,” violating the judge’s rights, the attorneys said.

In a brief order issued Thursday morning, the high court, without dissent, refused to grant a review of the case. Meanwhile, the hearing for Schmidt began behind closed doors in a Court of Appeal courtroom in Santa Ana.

Jack E. Frankel, chief counsel and director of the commission, expressed disappointment with the court’s order. “We thought that the Constitution warranted the action we took,” he said.

An attorney for the commission, Peter Gubbins, said the agency will pursue a separate appeal now before the appellate court in Santa Ana in an effort to win an eventual ruling allowing the commission to hold open hearings at its discretion. But that appeal could take months or years to resolve and it now is quite unlikely that Schmidt’s case will be heard in public, Gubbins said.

H. Warren Siegel of Irvine, a lawyer for Schmidt, welcomed Thursday’s action by the high court. “It appears that for the time being, at least, the court is in agreement with our position in this case.”

Schmidt, 59, sits in Newport Beach and has served on the bench longer than any other judge in Orange County. No charges have been made publicly against Schmidt but the commission’s inquiry is reported to focus on claims that he gave preferential treatment to a prostitute and the stepdaughter of a friend and that he traded leniency in exchange for sexual favors for others.

Lawyers for the judge have said the charges are groundless. The constitutional provision at issue involves the formal investigative hearings that the commission holds after a confidential preliminary inquiry into complaints made against the judge.

Legislative backers of the 1988 amendment said that although judges should not be subject to suspicion merely because of a complaint, the public should be informed when serious allegations are examined in a formal hearing.

By law, the commission is authorized to privately or publicly admonish a judge for any misconduct or, in more serious cases, seek public censure or removal of a judge by the state Supreme Court.