State’s Judges Plan to Buy Type of Liability Insurance : Law: Overhaul of discipline system, recall effort against O.C. jurist contribute to the decision to seek protection.

California judges, who have traditionally relied on judicial immunity to shield them from complaints by disgruntled parties, are planning for the first time to buy a type of malpractice insurance to protect themselves against an anticipated flood of misconduct complaints.

The judges say their decision to seek insurance protection stems from a growing nervousness that the state judicial discipline system, which was recently overhauled to include a majority of non-lawyers, will pursue more complaints against members of the bench.

Under a plan being worked out by the California Judges Assn., the 1,500 jurists who serve on municipal, superior and appellate courts will each have to pay an estimated $200 a year for a professional liability policy. Rudolph A. Diaz, a Rio Hondo Municipal Court judge who serves as president of the association, said last week that his group was close to finalizing a deal with a New Jersey insurance underwriter to provide the coverage.

That deal will put judges in the same class as doctors, lawyers and architects who must buy insurance to protect against challenges to their professional opinions.

Diaz emphasized that judges’ decisions still are immune from lawsuits. But legal advisers to several counties--including Orange County--have recently stated that the counties were not obligated to represent judges in disciplinary matters before the revamped Commission on Judicial Performance. The liability insurance is simply to cover the costs of defending potential disciplinary charges, he said.

“With the public’s growing dissatisfaction with crime and punishment, we seem to be the most visible targets,” Diaz said. “Judges are fearful that the politicization of the commission will bring more allegations against us, not for crime or misconduct but for exercising our judgment.”

Diaz said the judges’ decision to seek insurance protection also was triggered in part by a recent recall effort mounted against an Orange County Superior Court judge, the filing of accusations against a second Orange County judge, and “hostile” remarks made by a new member of the commission.

But at the heart of the judges’ concern is the new, get-tough judicial watchdog panel, which was the result of the passage of Proposition 190.

The ballot measure radically restructured the commission, replacing its all-judge majority with a majority of non-lawyers appointed by the governor and the Legislature. The changes, which took effect March 1, also require that all disciplinary proceedings against judges be held in public.

Proponents of the measure had contended that the old commission, which was the first judicial discipline system in the nation, was ineffective, overly secretive and far too lenient in dealing with wayward judges.

Records indicate that while 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. Until it recommended last year 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.

Several lawyers and law professors expressed surprise at the judges’ decision to sign up for insurance protection.

“This indicates a breakdown of the system,” said Robert C. Fellmeth, a professor with the Center for Public Interest Law at the University of San Diego Law School. “It’s not good when judges have to arm themselves against a fear they should not have. It’s a very discouraging sign. The fact that they feel a hammer over their head is itself significant and worrisome.”

Diaz and other judges say their concern is justified.

They cite a recent recall campaign against prominent Orange County Superior Court Judge Everett W. Dickey as a warning signal to judges.

In that case, Kathy Woods of San Clemente, the mother of a teen-ager slain when a paint-roller rod pierced his head, said Dickey’s sentencing of two teen-agers convicted in the killing was too lenient. The two were sentenced to the California Youth Authority instead of prison. Woods told The Times last week that she also plans to file a separate complaint with the disciplinary commission.

In a separate case, commission officials told James R. Ross, an Orange County Superior Court judge until his retirement last May, that they were investigating a slew of complaints filed against him by some aggrieved attorneys. One of the allegations involved a $218,000 sanction that Ross imposed on Laguna Niguel attorney C. Brent Scott for filing a “frivolous” lawsuit against a Long Beach lawyer. Scott contends that Ross should have recused himself from hearing the case because the judge was close friends with his adversary’s partner in the Long Beach firm.

The 4th District Court of Appeal in Santa Ana and the California Supreme Court upheld Ross’ sanction. After that, Scott hired Harvard Law School professor Alan M. Dershowitz to urge the U.S. Supreme Court to overturn the sanction. Last October, the Supreme Court refused to review Scott’s application.

Scott is now pursuing a complaint with the judicial performance commission.

Ross, who served 12 1/2 years on the bench, said he was informed about the complaint against him six weeks before his July 7 retirement. He said he decided to hire a private lawyer after the attorneys with the county counsel’s office said they were not obligated to represent him.

Ross, who still presides on assignment in some civil cases, said he has already paid a $15,000 legal bill to file an official response to the allegations. He said he expects to pay at least $50,000 in legal fees if the commission holds public hearings on the matter.

“It’s a tremendous burden,” Ross said. “I don’t think you should have to pay through your nose even though you worked for the county and the state. I will be vindicated someday, I just don’t know when, or how much it will cost.”

Ephraim Margolin, a San Francisco lawyer who is representing Ross, said legal bills for such cases could range from $15,000 to $250,000.

“Insurance makes sense if the judges get to select their own attorneys,” said Margolin, who in his 33-year career has represented 79 judges in various actions ranging from disability to discipline. “Judges need insurance because they don’t have such huge financial resources.”

In addition to the matters involving two Orange County judges, Diaz and others say judges were also edgy over some remarks in newspaper interviews by commission member Harriet Salarno that she planned to teach judges how to be more sensitive toward victims.

Salarno, who said she had not heard about the commission until her appointment by Gov. Pete Wilson, has spent numerous hours monitoring courtrooms ever since she founded a victims’ rights group 16 years ago, when her daughter was slain by a boyfriend.

Salarno says that judges were overreacting in rushing to sign up for liability insurance.

“They have nothing to be fearful about,” Salarno said. “If you do your job, there shouldn’t be any fear. I’m probably going to be more sympathetic” to the judges.

Judges in 21 states carry liability insurance, according to Janice Fernette, a staff attorney with the National Center for State Courts in Williamsburg, Va. In some cases, the counties in which they work pay for the coverage, Fernette said.

A New Jersey insurance underwriter, who is working with the state’s judges association, has estimated that California judges will have to pay $800 a year for the coverage because counties won’t provide the coverage. But Diaz, the association president, said the judges were negotiating to lower the premium “to somewhere between $100 and $200.”

William F. McDonald, an Orange County Superior Court judge who represents Orange, Riverside and San Bernardino counties on the judges association, said there was widespread support for the insurance.

“There is a lot of uneasiness among the judges,” McDonald said. “How broad is the commission’s authority? Judges want to know if they [commission members] will bring up rulings that are affirmed on appeal. A fear that the commission will try to second-guess our decisions is making a lot of judges nervous.”