Panel Contends Judge’s Dissent Was Misconduct

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In a highly unusual move likely to generate controversy, the California Commission on Judicial Performance has accused a veteran state appeals court judge of “willful misconduct” in connection with a dissenting opinion he wrote last year.

Justice J. Anthony Kline stated in the dissent that “as a matter of conscience” he could not adhere to a state Supreme Court precedent. The precedent in question was “destructive of judicial institutions,” he wrote.

The commission notified Kline of its action last week and is set to publicly release the charges against him today.


Trial judges and appeals court justices are expected to follow the precedents set by the Supreme Court, but when they do not do so, the usual remedy is for the Supreme Court to reverse their rulings.

The Judicial Performance Commission, which generally investigates charges of conflict of interest, corruption and the like, has never before moved to discipline an appeals court jurist for a written opinion, legal experts said.

The move is made even more unusual by the fact that appellate judges hear cases in three-judge panels, and Kline’s statement came in a dissent--a judicial statement that has no legal effect other than to state a judge’s opinion.

Moreover, the precedent involved in the case is a controversial one--at least among lawyers--that has been criticized by several legal scholars.

Kline now stands accused of “conduct prejudicial to the administration of justice that brings the judicial office into disrepute, improper action and dereliction of duty”--charges that could lead to censure or even removal from the bench. A date for a hearing in the case--the next step in the process--has not been set.

New York University law professor Stephen Gillers, who specializes in legal ethics, said he expected the Kline case to generate broad discussion in the legal world because “it goes to the very heart of judicial administration and conscience.”


“If public officials do not follow the decisions of the Supreme Court, you could not have a system governed by the rule of law . . . we [would] have anarchy,” Gillers said.

But “to turn this into a judicial misconduct proceeding trivializes the purpose of the commission,” Gillers added. Kline’s dissent did not affect the rights of any litigants, he noted. “It was a public position of conscience,” he said.

State Appeals Court Judge Arthur Gilbert of Ventura went further. He said the charges against Kline are likely to set off “a firestorm. . . . This is really scary. If Tony can be censured for saying the state Supreme Court should reconsider a decision, what’s next?”

While declining to comment, Kline acknowledged that the commission had informed him that he would be charged. He provided a copy of the charges to The Times and a lengthy March 13 letter defending his actions that he sent to the 11-member commission after being notified that he was under investigation.

Commission officials declined to comment on the case because it has not yet officially been made public.

According to the documents, however, the commission contends that Kline violated two canons of the state Code of Judicial Ethics--one that says judges must act so as to promote “public confidence in the integrity and impartiality of the judiciary” and a second that states that “a judge shall be faithful to the law.”


In his letter to the commission, Kline, 59 and a judge for 18 years, defended himself, noting that “unlike the ordinary case filed by the commission, the allegations against me do not claim that I acted for an improper purpose or involve ‘moral turpitude, corruption or dishonesty’ of any kind.”

John W. Keker, a prominent San Francisco lawyer who opposed Kline’s position in the case that is at the center of the controversy, nonetheless said he supports the judge.

“To use the Commission on Judicial Performance to chastise or embarrass or intimidate a sitting judge for something he has done in a written opinion that is reasoned and represents his view is absolutely outrageous,” Keker said.


Similarly, professor J. Clark Kelso, a constitutional scholar at University of the Pacific’s McGeorge School of Law, said he was “outraged” by the commission’s action.

“The commission appears to be asserting a power to set itself up as a shadow Supreme Court, where if it doesn’t like how an appellate justice votes or writes an opinion, then it can institute proceedings against him. . . . That is an intolerable intrusion on judicial decision-making and independence,” Kelso said.

Kline’s case may eventually set a precedent for what constitutes “willful misconduct” of a judge under California law, said UC Berkeley law professor Stephen Barnett, who is challenging commission practices in two other cases.


“I would argue that the judge has to act with some improper purpose for there to be willful misconduct. That isn’t the case here,” he said.

At the center of the controversy is a 1992 state Supreme Court decision, Neary vs. Regents of University of California. In the ruling, the high court said that after a verdict in a case has been announced, the parties to a lawsuit can reach an out-of-court settlement that wipes earlier judicial opinions in the case off the official books.

That sort of practice, known as a stipulated reversal, is an unusual one. It has been barred in federal courts by a unanimous 1994 U.S. Supreme Court decision written by conservative Justice Antonin Scalia.

The California Supreme Court’s ruling allowing the practice in state courts has been severely criticized by legal scholars because, in effect, it allows a party that has enough money to buy its way out of adverse court rulings.

That is the position Kline has taken. Because the Neary case “permits a party with the necessary economic means to purchase the reversal of an adverse judgment not shown to be erroneous, [it] undermines the integrity of the judicial branch of state government, because it converts the judgment of a court into a commodity that can be bought and sold,” he wrote in his letter to the commission.

For its part, in approving stipulated reversals, the state Supreme Court declared that “the public interest . . . is served by the peaceful settlement of disputes and unclogging of court dockets.”


“The courts exists for litigants. Litigants do not exist for courts,” Justice Marvin Baxter wrote.

In response to a plea from the California Judges Assn., which was disturbed by the ruling, the Legislature passed a bill overturning Neary in 1994. But the measure was vetoed by Gov. Wilson at the urging of Ronald M. George, then an associate justice of the state Supreme Court and now chief justice.

In the opinion that forms the basis for the charges against him, Kline stressed that he was not showing disrespect for the state’s highest court. Rather, he said that unless he issued a dissent, there would be no way to bring the issue back to the Supreme Court. Because stipulated reversals happen only when both sides to a case agree, ordinarily no party has an interest in challenging them.