Bar Urges Judicial Panel to Drop Charges

The American Bar Assn., the nation’s largest lawyers organization, urged the California Commission on Judicial Performance on Thursday to withdraw charges of “willful misconduct” that it filed this month against a veteran state appeals court judge.

“The ABA is particularly concerned that this proceeding is a serious and direct challenge to the principle of judicial independence--a tenet central to America’s basic precepts of justice and our historic adherence to a just rule of law,” ABA President Jerome J. Shestack wrote in a formal letter to Victoria B. Henley, the commission’s general counsel.

The dispute is likely to heighten a growing controversy that has upset many of the state’s judges.

On July 6, the commission accused Justice J. Anthony Kline of “dereliction of duty” stemming from a dissent that Kline wrote last year in which he said that “as a matter of conscience” he could not adhere to a state Supreme Court precedent that he considered “destructive of judicial institutions.”

The commission’s action, which could result in Kline’s removal from the bench, has been widely criticized by other judges and attorneys, including some who disagree with the San Francisco judge’s position on the legal issue that precipitated his dissent. Legal experts said it was the first time that the commission had threatened to discipline an appeals court judge for a dissent.

“It is difficult to understand how a reasoned, measured, rational dissent can become the subject of a disciplinary inquiry,” Shestack wrote. “The commission members must recognize that dissent has long been recognized as essential to the American judicial system.”

Additionally, the Los Angeles Superior Court’s executive committee announced Thursday that it has adopted a resolution condemning the commission’s action “as an unprecedented and dangerous attack on the independence of the judiciary,” and called on all the state’s judges to support Kline “against this affront to the independence of the California judiciary.”

Commission Chairman Robert C. Bonner Jr., a Los Angeles attorney, said neither he nor Henley had received the letter. Even if they had, they would not be able to comment “on a matter that is pending before the commission,” he said.

Allan J. Joseph, a San Francisco attorney who is a member of the ABA’s board of governors, said he believed it was the first time that the 400,000-member organization had weighed in on a commission action.

Joseph noted, however, that the ABA has grown increasingly concerned about judicial independence. Last year, the organization issued a report on the issue that emphasized “the profound obligation of the bar to defend a judge who is criticized for a specific decision.”

“I hope the commission can find a graceful way to back out of this,” Joseph said.

If that does not happen, Kline’s defense will be led by two of the state’s top lawyers--former federal appeals court Judge Shirley Hufstedler and James Brosnahan, her partner at Morrison & Foerster, one of the state’s largest law firms.