ORANGE COUNTY VOICES : JUDICIARY : Preserve Sanctity of Judicial Impartiality

You can’t rent a judge any more than you can buy one. Happily, in California you can’t buy one either. What you can rent, or, more properly, retain because they are all professional services, is a mediator, arbitrator or facilitator. These services are invaluable to the community and especially to the court.

If the services are provided by retired judges, then people with considerable experience and talent are performing them, but they are not acting as judges; they are merely former judges performing functions any qualified person could perform. Nor are they acting as judges even though sitting judges frequently do the same tasks. Incidentally, some of the arbitration and mediation services charge $280 an hour. That’s $2,240 for an eight-hour day, which isn’t exactly within the reach of all parties, unless you happen to be an insurance company. Besides, private firms are not authorized to enter judgments. That can only be done in a real court, and they have no mechanism to enforce orders.

Change didn’t dictate that the first, most impressive, and frequently only, building that went up in the county seats of our expanding country was the courthouse. It represented stability, civility and the recognition by the people that the judicial power was just where they wanted it to be--in the hands of an independent, neutral and co-equal branch of government; one beholden to no special interests, not driven by profit but bound by the oath each judge takes to support and defend the Constitution and, ultimately, answerable to the people.

Every person could point with pride to the courthouse, knowing, if he or she had cause to be there, they would have access and be treated fairly under the law. It didn’t make any difference if the person was rich or poor, what the color of his skin might be, whether he had a Ph.D., or whether he had the resources of an insurance company behind him or had some of the fees waived for lack of funds.

Every person stands equal before the law. That’s why the community has invested in our system of justice, and that’s why it should be allocated a fair share of the resources.

What the Founding Fathers devised in creating our unique judicial branch of government, different and better than anything that had ever been before it, cannot be purchased commercially. But this is basic sixth-grade civics. Certainly no one is advocating abandoning our basic form of government for a stock exchange wheel of fortune. Or are they?

Retired judges, as well as practicing attorneys, represent a valuable resource to the judiciary that has been called upon, with constitutional authority, since 1872. Some retired judges are assigned to the court by the Judicial Council. The help is needed to deal with the burgeoning workload caused by the war on drugs, which has had a significant impact on the court’s calendar, and the astounding growth in our community.

The court can also appoint retired judges, who do not choose to be assigned, and attorneys (who may make themselves available at no cost or have their costs borne by the parties) to be temporary judges, or judges pro tem. Because they are not already constitutional judges, the parties must agree to the use of pro tems. However, once the parties do agree to the pro tems, they are judges of the court while handling the matter before them. There is nothing private about them or the proceedings, they are within the gambit of the judiciary. What they do is done in open court. They have all the powers of a regular judge and, because they are temporary judges of the court, their decisions may be appealed just like all other decisions of the court.

The court does not solicit litigation. It has always encouraged disputing parties to settle their differences by non-judicial means wherever possible. Even after filing a formal action, the parties are required to investigate and consider resolution without trial. Litigants are informed of means other than the court to resolve their disputes. This includes commercial-for-profit organizations which can, and sometimes do, perform outstanding services. They tend to be expensive, but there are a large number of litigants who are able to afford the services, and the court benefits from every dispute that is resolved by legal means.

There is no substitute for a truly separate, independent and co-equal judiciary. In fact, an independent and impartial judiciary, and the judges it provides, free from even the slightest appearance of partiality, is essential to our concept of fairness and justice.