Rules on Hired Judges Would Make Public Issues Private, Critics Say : The law: Sexual harassment, fraud and other cases affecting all citizens could be resolved behind closed doors, a press coalition says. Judicial Council panel members disagree.
Proposed new rules for private, so-called “rent-a-judge” cases have been attacked by critics who say they would allow a wide range of civil disputes to be routinely heard in secret.
The rules, proposed by a state Judicial Council committee, would require the public and press to obtain approval from a private judge to attend. Critics say that because of inadequate provisions for advance public notice, potentially important cases--involving such issues as industrial hazards, sexual harassment or fraud--will proceed unwatched.
“This creates an enormous tidal pull into the private, secret sector for all kinds of litigation that has traditionally been the mother lode of news information for the public,” said Terry Francke, executive director of the First Amendment Coalition, a group of news organizations.
But committee members say that critics’ fears are misplaced and that the guidelines adequately provide for public access whenever there is an issue that the judge finds to be of public concern.
“I really don’t think this is going to present a problem,” said Patricia Phillips, a Los Angeles lawyer who serves on the committee.
The proposals run counter to strong recommendations by a special advisory group of legal authorities that private-judge cases be closed only under the same rules that allow closure of regular court cases--as in disputes involving trade secrets.
“Private judging is here to stay and has many beneficial attributes,” said USC law dean Scott H. Bice, who chaired the advisory group. “But there are certain public safeguards--an awareness of what’s going on--that ought to be preserved in these proceedings.”
The controversy is the latest to arise over the booming private-judging business in California. By law, opposing parties in civil suits may hire retired judges to decide cases. Judgments are enforceable and can be appealed in the regular court process.
More than 250 judges have left the bench to join the new industry, and one company alone--Judicial Arbitration and Mediation Services Inc.--handles more than 10,000 cases annually.
Many legal authorities praise the system for allowing litigants to obtain swift decisions and easing pressure on overcrowded courts. Critics contend that the system unfairly produces a two-tiered justice system--one for those who can afford the service, another for those who cannot.
The advisory group led by Bice was appointed by Chief Justice Malcolm M. Lucas to study complaints about the process and needs for reform. The group issued a detailed 66-page report in August, 1990, recommending, among other things, that private-judging activities and records be made as public as those of regular judges.
Those proposals, however, drew opposition and Lucas appointed a new committee to draft revised rules. Under the new rules, proceedings can be opened when the private judge, acting at the request of “any person” or at the judge’s own motion, finds the matter “of public interest.” Case records still may be sealed at the request of the parties in the dispute.
Lynn Holton, a spokeswoman for the Judicial Council, noted that the majority of private-judging proceedings are held in conference rooms, attorneys’ offices and other facilities with limited space. She said committee members believed that requiring an advance request for public access would give the judges adequate opportunity to find larger facilities if the case were deemed of public interest.
Committee member Phillips agrees that the prime reason for requiring requests for open proceedings was to ensure adequate facilities. “That was the guiding force . . . mundane as it is,” she said.
Phillips and San Francisco Superior Court Judge Roy Wonder, chairman of the committee, say they believe the requirement will present few obstacles to legitimate public access.
“The Judicial Council is very sensitive to First Amendment concerns and issues,” Wonder said. “These rules simply say that any person can write a letter asking that a case be declared of public interest. . . . Anyone can get in, even if (the case) is being held in a hotel room.”
Meanwhile, the coalition of news organizations plans to file a formal objection to try to block the proposed rules before they are enacted by the Judicial Council in November.
Francke noted that one appeal of the private-judging system is that it allows parties to resolve potentially embarrassing disputes with very little risk of public notice. Few, if any, reporters or members of the public have complained about being barred from such proceedings--mainly, he said, because the vast majority of the cases go unnoticed.
“A great deal of what we know about our society comes willy-nilly from the courts,” Francke said. “If you start allowing the court system to be made effectively secret, for a price, then those who want to keep those secrets will be willing to pay that price.”
