A Less-Than-Stellar Start

When California voters overwhelmingly approved Proposition 190 on last November’s ballot, their expectation was that the state’s system of disciplining errant judges would undergo overdue reorganization and reform. But with the implementation of Proposition 190, even its supporters, including this newspaper, may now have some reason to worry.

In 1960 California created the nation’s first judicial discipline system. Judges could be disciplined if they ruled on cases despite blatant conflicts of interest, engaged in such inappropriate behavior as sexual harassment or acted egregiously in the courtroom.

But by the 1990s, the Commission on Judicial Performance had become demonstrably clubby, secretive and ineffective in dealing with judges who misbehaved or had become incompetent. What began as an honorable effort by the state’s judiciary to police itself had taken on a circle-the-wagons quality. The panel’s makeup and procedures, rather than its definition of misconduct, were the root of the problem.

Proposition 190 raised commission membership from nine to 11 and gave representatives from the public a majority. The six public-member appointments are divided among the governor, the Senate Rules Committee and the Speaker of the Assembly. Equally important, the measure provides for open disciplinary hearings and gives the panel the authority to remove or discipline judges. In the past, it had to first gain approval from the state Supreme Court.

The revised commission, now at work on pending complaints, begins under a cloud of questions about the independence and fair-mindedness of those appointed to the new public at-large seats. One new appointee, Harriet Salarno, a victims rights advocate selected by Gov. Pete Wilson, has worked to unseat judges she considers too lenient. The commission cannot punish judges solely for being either liberal or conservative, but Salarno ominously insisted that the commission could have found a way to discipline then-state Supreme Court Chief Justice Rose Bird for reversing death and life-without-parole sentences. (Voters unseated Bird in 1986.)

Another non-lawyer member is Eleanor Johns, appointed by former Assembly Speaker Willie Brown when she was manager of his San Francisco law office. She will have to work hard to demonstrate her independence. Still another public member and Brown appointee, David Malcolm, is a mortgage banker who served on the California Coastal Commission. Malcolm was the subject of a three-year probe by the state’s Fair Political Practices Commission into allegations that he used his position to benefit himself and his friends. No charges were brought.

These new commission members, along with the others, must now demonstrate that will implement the spirit as well as the letter of Proposition 190. If they fail to do so, they should be replaced.