A bill to curb the powers of the state’s Commission on Judicial Performance has sailed through an Assembly committee--a move that both the commission and its opponents see as a reaction against its investigation of a well-known state appellate judge.
The measure would sharply limit the commission’s power to discipline a judge in cases like that faced by Justice J. Anthony Kline of San Francisco. The bill now appears to be on a fast track toward legislative approval, although Gov. Pete Wilson has not indicated whether he would approve it.
The judicial performance commission is investigating Kline because of a dissent he wrote in which he said he would refuse to adhere to a state Supreme Court precedent.
The commission’s move against Kline has been extremely controversial--prompting objections from the speaker of the Assembly, judges around the state, the president of the American Bar Assn. and the Northern Cailfornia chapter of the American Civil Liberties Union.
The measure, authored by State Sen. Quentin Kopp (I-San Francisco), would prohibit the commission from investigating or disciplining a judge solely because of a judicial decision or administrative act later determined to be legally incorrect.
It also provides that “a dissenting opinion, in an appellate case, which does not adhere to a precedent set by a higher court, and which presents reasoned grounds for questioning the precedent, shall not be a basis for imposing discipline on a judge.”
That language would appear to protect Kline, according to an analysis of the bill by the staff of the Assembly Judiciary Committee.
On the other hand, the measure would not protect such actions from discipline if they were part of “a sustained pattern of willful abuse of judicial authority.” Nor would it apply to decisions that otherwise violate judicial canons of ethics.
The Judiciary Committee approved Kopp’s bill on a bipartisan 11-1 vote, with four Republicans joining seven Democrats in sending the bill on to the Assembly Appropriations Committee.
Earlier this summer, the committee had rejected a similar measure, but reopened the issue in light of the commission’s July 6 announcement that it had filed charges against Kline.
“Suddenly, we have a new world,” said Kopp, a strong supporter of judicial independence who is considerably more conservative than Kline. The justice, 59, began his career on the bench 18 years ago after serving as the legal affairs secretary in the cabinet of Gov. Edmund G. “Jerry” Brown Jr.
Kline is widely considered a strong possibility to be tapped for the state Supreme Court if a Democrat is elected governor in the near future.
The current controversy began with a dissent Kline wrote last December in which he said that “as a matter of conscience” he could not adhere to a 1992 state Supreme Court precedent in a case called Neary vs. Regents of University of California. In that case, the state’s high court gave its approval to a controversial practice known as stipulated reversals. That practice permits parties to a lawsuit to reach an out-of-court settlement after a jury verdict that wipes earlier judicial opinions in the case off the official books. Stipulated reversals are controversial because, in effect, they allow a wealthy litigant to buy his or her way out of adverse court rulings. They were barred in federal courts by a unanimous 1994 U.S. Supreme Court decision written by conservative Justice Antonin Scalia.
Kline said in his dissent that he considered the practice “destructive of judicial institutions.” The commission has accused him 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.
Kline’s formal answer to the charges is due Aug. 19. After his answer is filed, the commission will set a hearing date. In a letter to the commission before the charges were filed, Kline stressed that he was not acting out of disrespect for the state Supreme Court, but was attempting to convey in good faith his objections to what he considered a dangerous legal doctrine.
Commission chairman Robert C. Bonner, a Los Angeles attorney, strongly opposed the Assembly bill, arguing that it would violate the state Constitution’s separation of powers doctrine. The commission is an agency set up by the state Constitution, and the bill “would impermissibly alter or repeal the constitutional grounds for commission investigations and standards for discipline,” Bonner wrote.
But the committee rejected that argument. The staff analysis notes that the commission “is not given the sole and exclusive authority” to make rules and procedures for its investigations.
Although the panel’s move against Kline has been widely criticized, it has drawn some applause, including support from Gerald Stern, executive director of the New York State Commission on Judicial Conduct, and from Myron Moskowitz, a professor at Golden Gate University School of Law who, like Kline, clerked for former California Supreme Court Justice Ray Peters.
“A judge who demands that parties (and lawyers) respect the law must show the same respect himself,” Moskowitz said this week in a lengthy critique of the case in the Los Angeles Daily Journal, a legal newspaper. “Kline has thrown down the gauntlet, and the commission must pick it up. It really has no choice.”
But at the hearing this week, UC Berkeley law professor Stephen Barnett, speaking in favor of Kopp’s bill, said that courts, not the commission, should determine whether opinions are wrong. “An appellate opinion is quintessential speech,” he declared.