CALIFORNIA ELECTIONS / PROP. 190 : Measure’s Opponents Enlist Judge Wapner’s Aid : Sweeping reform initiative would overhaul widely criticized agency that metes out judicial discipline.

Presented with the case of the judges judging other judges, Judge Joseph A. Wapner of “People’s Court” fame has, of course, reviewed the evidence carefully:

Proposition 190, on the Nov. 8 ballot, would dramatically overhaul the Commission on Judicial Performance, the judge-dominated state agency that is supposed to discipline wayward judges.

Virtually every legal group in California has been pressing for reform of the commission, an agency widely criticized as ineffective and overly secretive.

This summer, the far-reaching reform proposal sailed through the Legislature, earning a sole no vote in both the Assembly and the Senate on its way to the ballot. There have been newspaper editorials backing the measure.

Here, then, is Judge Wapner’s opinion: Proposition 190 stinks.

“It’s a bad, bad bill that should not be passed,” Wapner said, referring to the initiative. “It undermines the independence of the judiciary. It’s against the separation of powers. I’m very happy to speak out and I sincerely believe it’s a bad bill.”

Plain-spoken, no-nonsense, blunt, a succinct summing up of the anti-190 argument--that’s just what opponents of the sweeping judicial-discipline reform plan were hoping for when they enlisted Wapner, once voted the most recognized judge in America, in their campaign against the ballot measure.

A former Los Angeles Superior Court judge who became a TV star during 12 years on “People’s Court,” Wapner is no longer active on the bench. The TV show is in reruns. But his star quality immediately swung the spotlight to Proposition 190, one of three initiatives that were late starters on the November ballot.

All three, added by the Legislature in the final days of its August session, focus on the courts. Proposition 189 would allow judges to deny bail to anyone accused of felony sexual assault. Proposition 191 would convert the state’s 47 Justice Courts in rural counties to more-prestigious Municipal Courts.

All three need only a majority to pass. The Libertarian Party has mustered the only opposition to Proposition 189, emphasizing that judges already have the authority to jail violent criminals. The only opposition in the state ballot pamphlet to Proposition 191 was written by a San Jose attorney who often submits contrary ballot arguments when no one else comes up with one.

Before Wapner entered the fray a couple of weeks ago, it was generally agreed that Proposition 190 was a sure bet. It still is seen in legal and political circles as a likely winner--but backers, acknowledging Wapner’s appeal, have taken to downplaying their chances.

“If I win, it’s like Slippery Rock beating Notre Dame, me beating Wapner,” said Marc Poche, a justice on the 1st District Court of Appeal in San Francisco and a vocal backer of Proposition 190.

The California Judges Assn., the 1,500-member trade group that recruited Wapner to be the front man for the opposition, lacks campaign funds. So Wapner is making the rounds of the editorial boards and the radio call-in shows.

“That’s all the judges have,” said Warren Ettinger, a former Pasadena Municipal Court judge now in private practice in Los Angeles. “They don’t have credibility. They don’t have much money. But they’ve got Joe Wapner.”

As it stands now, the San Francisco-based commission is made up of nine members--five judges, two lawyers and two members of the public. It operates in the strictest secrecy, purportedly to protect judges from unfounded charges. It is authorized to admonish judges privately or recommend to the state Supreme Court that a judge be censured or removed from office.

Proposition 190 would increase the membership of the commission from nine to 11--six members of the public, two lawyers and three judges. The change would give the public, not judges, a majority on the panel. The measure would require all proceedings to be open after formal accusations are filed against a judge. And it would give the commission the authority to remove a judge on its own.

The proposition is not likely to have any significant fiscal impact, according to the state’s legislative analyst, because the changes are largely procedural.

But those procedures would radically restructure what was the first judicial discipline commission in the United States, created in 1960 and once regarded as a model for the rest of the nation.

It is no longer uniformly viewed with such high regard.

The commission’s job is to investigate misconduct. Some is obvious--racial or gender bias, drug abuse or the taking of bribes. Judges, however, are supposed to stay free from even the appearance of wrongdoing.

And although records indicate that the number of complaints soared from 260 in 1980 to 950 in 1993, the number of cases in which disciplinary action was taken increased only from nine in 1980 to 16 in 1993.

“The commission has not been vigilant and much too willing to tolerate improprieties by judges,” said USC law professor Edwin Chemerinsky, an authority on judicial ethics.

Until it recommended Sept. 13 that San Diego Superior Court Judge G. Dennis Adams be removed from office, the commission had not voted to publicly censure or remove a judge for six years.

Adams, accused of improperly accepting gifts, said in a statement that he intends to fight for his job. He also said he was “being sacrificed by the commission so it can justify its existence to a very critical Legislature.”

The Legislature has, indeed, been very critical in recent years of the judiciary--a friction that apparently goes back to the California Supreme Court’s 1991 decision upholding Proposition 140, a 1990 initiative that imposed term limits on elected officials and slashed the Legislature’s budget by 38%.

The next spring, the Legislature threatened to cut the Supreme Court’s budget--by precisely 38%. But those threats were not carried out.

This fiscal year, after years of modest annual increases to the commission’s budget, the Legislature abruptly increased the panel’s budget by $1 million, to about $2.4 million--with the obvious expectation, several experts said, that there would be results.

Then, in December, Peter Keane, the chief assistant public defender in San Francisco, wrote a scathing article about the commission in a legal newspaper, the Daily Journal.

Noting that the commission had not voted to remove a single judge in years, Keane, a member of the State Bar’s board of governors, called it “dead in the water.” He added that the commission gave the “appearance of being in the pocket of the judges whom they are supposed to regulate.”

Copies of the piece were soon circulating in Sacramento.

A month later, in January, the commission announced that it had found “no basis” for disciplining Chief Justice Malcolm Lucas, who had been under investigation for traveling extensively and accepting reimbursement for his trips.

To critics, this came as no surprise. The state Supreme Court--headed by Lucas--appointed the five judges currently on the commission. Another member was appointed by former Gov. George Deukmejian, who had appointed his former law partner, Lucas, to be the chief justice. Still another member was appointed by another Republican governor, Pete Wilson.

Keane had written in December: “The California judiciary is a close-connected network of people intensely loyal and empathetic to each other as members of the same unique club.”

In August, the measure Keane helped write shot through both houses. The vote in the Assembly was 74-1. In the Senate it was 31-1.

Foes, Wapner included, understand the momentum for reform. And judges profess not to be bothered by the provision that would open the commission’s proceedings to the public.

Instead, what alarms opponents is that Proposition 190 would give politicians--the governor, the Speaker of the Assembly and the Senate Rules Committee--the power to appoint eight of the 11 members on an expanded commission, with three appointments left to the Supreme Court.

A better plan, judges say, is the one adopted last month by the American Bar Assn. that would create a 12-member commission--four judges, four lawyers, four members of the public. The courts would nominate the judges, the State Bar would select the lawyers and the politicians would appoint the public members.

That would eliminate opponents’ “separation of powers” concern with an 11-member panel, that a majority of eight would “take it out on the judicial branch of government any time they’re displeased with the actions of the judiciary,” said Sen. Quentin Kopp (I-San Francisco), who cast the sole vote in the Senate against the initiative.

Opponents of Proposition 190 have one more objection--an ultra-legalistic one. The initiative would give the commission the power to write its own rules and decide who and how, under those rules, to prosecute, judge and punish.

That arrangement raises constitutional worries because in the state’s trial courts, the functions of prosecutor and judge are separate, said Santa Monica Superior Court Judge David Rothman, an expert on judicial ethics.

If Proposition 190 passes, a lawsuit challenging it on such constitutional grounds is all but certain, judges said.

Just ask Wapner. “I am not a wallflower going to sit idly by and see principle going down the drain, and not speak up,” he said.