Panel OKs Bill on Judicial Reform : Senate: Measure would change the way judges are disciplined in misconduct cases. Critics say current system is too lax and secretive.

Efforts to reform the state’s secretive system of disciplining judges gained momentum Tuesday as the Senate Judiciary Committee passed without dissent a bill designed to end the judges’ domination of the process and assure greater openness in misconduct hearings.

A similar measure unanimously passed the Assembly Judiciary Committee last week. Both bills now have to move through two other committees in each house, but legislative aides said that clearing the first policy committee was the most significant hurdle in each instance.

The California Judges Assn. opposes both bills in their current form, although it acknowledges the need for reform, said the organization’s lobbyist, Michael Belote. The organization had hoped that the Senate committee would shelve the bill for the year by asking for further study.

Legislators rebuffed the entreaties of Santa Monica Superior Court Judge David M. Rothman to delay taking action until a special committee of the California Judicial Council that he heads has finished a study of judicial discipline in the state.

“There is little reason to delay in hopes that the (Rothman) committee will produce information that is not already available,” said Sen. Alfred E. Alquist (D-San Jose), sponsor of the bill that passed 8 to 0 Tuesday.

“For far too long,” the California Commission on Judicial Performance, an agency created in 1960 to be a watchdog over the state’s judges, “has shown a consistent inability to perform its duties,” Alquist said.

Rothman made a similar effort last week with the Assembly committee, which also rebuffed it. Sensing that change is inevitable, he moderated his stance during the Assembly hearing. He said that if the legislators decided they had to act rapidly, his committee would speed up its work and attempt to give its findings to legislators before the end of this session, scheduled for Aug. 31.

“I’m elated by the 8-0 vote,” said Peter Keane, chief deputy public defender of San Francisco and one of the spearheads of the reform effort. “I think this was the last hurrah of those trying to stop (change),” he said. Five Democrats and three Republicans voted to pass the bill out of committee. Three members were absent.

Keane wrote an article in the Daily Journal, a legal newspaper, in December blasting the Commission on Judicial Performance for meting out too little discipline and doing most of its work in secret.

He then wrote legislation for Assembly Speaker Willie Brown (D-San Francisco). In this bill, two key sections are the same as in the Alquist measure.

Both bills mandate that hearings into judicial misconduct be open once formal charges have been filed. Now, virtually all of the hearings are held in secret, despite attempts by prosecutors from the California attorney general’s office to have open hearings.

And the decisions to hold the hearings in secret are made by other sitting judges, whom critics of the process say are simply protecting their colleagues.

A representative of Atty. Gen. Dan Lungren, as well as representatives of the California District Attorneys Assn. and the California Newspaper Publishers Assn. testified in favor of the bill.

The Alquist bill, like the Brown bill, also would reconstruct the membership of the Commission, changing it from consisting of a majority of judges to a majority of public, citizen members.

Sens. Cathie Wright (R-Simi Valley) and Charles Calderon (D-Whittier) expressed reservations about having a majority of public members on the Commission. Wright said it might reduce the commission’s expertise. But Keane retorted that non-lawyers are capable of making decisions about a judge committing an act of malfeasance, in the same way that ordinary citizens make decisions in jury trials.

Calderon expressed concern that adding more public members might overly politicize the process and subject a judge to a “lynch mob” mentality.

But San Diego Superior Court Judge Terry B. O’Rourke dismissed that argument, noting that “seven judges of the California Supreme Court” would still review contested commission decisions.

O’Rourke also pushed for a section of the Senate bill that goes further than the Assembly measure. That provision would divest the California Judges Assn. of the power to adopt a code of conduct for the judiciary and give that power to the California Supreme Court.

In California, the judges association significantly weakened the American Bar Assn.’s Model Code of Judicial Conduct, O’Rourke said.

“In every instance where the ABA Model Code states that a judge ‘shall’ or ‘shall not’ do a thing,” the judges association “has changed the code to read ‘should’ or ‘should not,’ O’Rourke said.

“As a sitting judge, I am simply embarrassed and find it inexcusable that the judiciary in California would change mandatory language to advisory language,” on matters of ethics, O’Rourke said.

Passage of both bills would require a two-thirds vote in the Legislature, and then a majority vote in a general election because the measures would amend the California Constitution.