Appeals Judge Denies ‘Willful Misconduct’ in Writing Dissent

A veteran state appeals court judge Friday formally denied charges by the state Commission on Judicial Performance that he had committed “willful misconduct” by writing a dissent saying that he would not adhere to a controversial California Supreme Court decision.

Justice J. Anthony Kline of San Francisco also contended that his actions did not constitute conduct prejudicial to the administration of justice, dereliction of duty or violation of the Code of Judicial Ethics.

Kline, 60, could face discipline ranging from censure to removal from the bench.

His attorneys stressed in papers filed with the commission in San Francisco that they were “unaware of any reported case in which an American appellate justice has been disciplined on the basis of a dissenting opinion.” They also maintained that “dissenting opinions have always been important in the development of American jurisprudence.”

The filing of a response sets the stage for a commission hearing in the case, which has generated widespread concern in the legal world. The president of the American Bar Assn., the California Judges Assn. and a bevy of lawyers have come to Kline’s defense--contending that the commission’s action could have a chilling effect on judicial independence.

Kline’s attorneys, James J. Brosnahan and Shirley Hufstedler, a former federal appeals court judge, contend that he acted in good faith. They maintain in their papers that an attempt to discipline a judge for expressing ideas in a dissenting opinion “poses a clear danger to the vitality of the California judiciary. . . . The commission’s charges can only be seen by sitting judges as a deterrent to their free expression.”

Kline’s lawyers urged the commission to dismiss the case, “not only for his benefit, but for the health of the judicial branch and our tripartite form of government.”

Victoria Henley, the commission’s chief counsel, said she would have no immediate comment.

The Kline case stems from a dissent he wrote in 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, after a jury verdict, to reach an out-of-court settlement that wipes earlier judicial opinions in the case off the official books.

After he learned he was under investigation for the dissent this year, Kline wrote a letter to the commission further explaining his position on stipulated reversals. Kline said he believed the practice, which was repudiated by the U.S. Supreme Court in a 1994 ruling, “undermines the integrity of the judicial branch of government because it converts the judgment of a court into a commodity that can be bought and sold.”

In that letter, Kline also stressed 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 of dishonesty’ of any kind.”

Kline stands accused of violating two canons of California’s Code of Judicial Ethics. The first states that “a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The other canon states that “a judge shall be faithful to the law regardless of partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the law.”

In their brief, Kline’s lawyers state that he believed his dissent was not only proper, but required, in order to faithfully discharge his duty under those two canons and a third canon calling on judges “to uphold the integrity and independence of the judiciary.”

Kline acknowledged in his dissent that as a general rule it is the obligation of lower court judges to follow precedent, a legal doctrine known as stare decisis. The Neary case, however, set up one of those “rare instances in which a judge of a [lower] court can refuse to acquiesce to a precedent of a higher court,” he wrote.

In their brief, Kline’s lawyers assert that the commission misunderstood stare decisis, failed to recognize the vital difference between a decision of an appellate court and a dissent by an appellate judge “and overlooked the important and honorable role dissenting opinions have played in shaping the law of the United States.”

Kline’s lawyers stressed that a dissent, such as the one Kline wrote, has no impact on the parties. “Dissenters hope that their views will ultimately be vindicated by a higher court, by the Legislature, or by later courts that will become convinced that the dissenter’s views were correct and will thereupon change the law,” the attorneys wrote.

In that regard, Kline’s lawyers noted that in 1975 Armand Arabian, then a Los Angeles County Superior Court judge, refused to deliver to a jury a state Supreme Court-approved compulsory instruction about a woman’s credibility in a rape case because he considered it outmoded and demeaning to the female victim. The attorneys stressed that Arabian’s “non-acquiescence” led the state Supreme Court to rewrite the instruction and he was not disciplined. In fact, Arabian later was elevated to the state Supreme Court.

Kline’s lawyers also maintain that he is not guilty of “willful misconduct,” which as defined by the California Supreme Court requires proof that a judge has acted in bad faith in a judicial capacity.

The next step is for the state Supreme Court to appoint a panel of three special masters to consider the case and then schedule a hearing. The masters then prepare findings that are reviewed by the commission, which makes a recommendation to the state Supreme Court, which has the final say.