Judicial Watchdog Panel Signals Kline Case Shift

A newly reconstituted state judicial watchdog panel--now dominated by Democrats--has taken the first step toward dismissing misconduct charges against an appeals court judge accused of flouting the law in a court dissent.

California Court of Appeal Justice J. Anthony Kline, appointed to the bench by then-Gov. Edmund G. “Jerry” Brown Jr., was charged last year with misconduct for writing in a dissent that he would not follow a controversial California Supreme Court ruling. The charges, filed during the Wilson administration, have provoked widespread criticism from judicial and lawyer groups and in newspaper editorials across the state. In a closed meeting, the Commission on Judicial Performance, the watchdog agency, decided this week to cancel a scheduled public hearing on the Kline case set for late next month and instead review more written arguments.

“It’s a good sign for us,” said James Brosnahan, a lawyer for Kline.

Jerome B. Falk Jr., a lawyer for the California Judges Assn., which strongly supports Kline, said he was “very encouraged” by the commission’s action.

The change in course coincides with a major turnover on the 11-member commission. Gov. Gray Davis, who worked with Kline in the Brown administration, has appointed two new members, and Assembly Speaker Antonio Villaraigosa (D-Los Angeles) and Senate President Pro Tem John Burton (D-San Francisco) have each appointed a new commissioner.

The California Supreme Court also has named two new members, leaving five holdovers, only two of them appointed by former Gov. Pete Wilson.

“We are hopeful that after the briefing, the commission will in fact dismiss the case,” said Brosnahan.

The commission’s action also is likely to expedite Kline’s case. If the scheduled public hearing had been held next month, a commission vote on Kline would have been delayed several months.

Kline, 60, is charged with “willful misconduct” and could be removed from the bench for such an offense. He is alleged to have violated judicial canons by writing in a 1997 dissent that “as a matter of conscience” he could not adhere to a 1992 state Supreme Court precedent. The other two members of the three-member appellate panel followed the precedent.

The state Supreme Court ruling that Kline refused to follow allows parties to a civil lawsuit, after a jury verdict, to reach an out-of-court settlement that wipes out all the judicial opinions handed down in the case. The practice, known as “stipulated reversals,” is controversial because it provides a means for a wealthy party to erase judicial holdings from the books.

Kline has said that his dissent was an attempt to get the California Supreme Court to reconsider its ruling. The U.S. Supreme Court, in a 1994 decision, repudiated the practice for federal courts.

The state Legislature also passed a bill overturning the state ruling in 1994. Former Gov. Wilson vetoed the bill at the urging of Chief Justice Ronald M. George, who as an associate justice had joined the ruling.

Judges are supposed to follow the precedents of higher courts, but Kline may be the first jurist ever to face discipline for a dissent. The judicial commission generally disciplines judges for such egregious behavior as sexual harassment, mistreatment of litigants or financial improprieties.

Kline and his legion of defenders argue that a judge should not be punished for a dissent that represents the view of the judge and not of the court.

“The charge against him, that he refused to follow the law, is on its face not correct because he made a plausible argument for an exception to the rule that lower court judges have to follow higher court precedent,” said Falk, the lawyer for the judges association.

Falk said there is “no controlling law” that prohibits Kline from acting as he did. “A judge can never be properly disciplined for acting in a gray area and in good faith, and he was in a gray area,” Falk said.

A commission spokeswoman declined to comment on the case.

The Assembly speaker and the president pro tem of the Senate each have two appointees on the commission. The governor has four, and the California Supreme Court has three. The recent turnover occurred because the terms of former members had expired.

The new Davis appointees are Michael A. Kahn, a San Francisco lawyer, and Lara L. Bergthold, executive director of the Lear Family Foundation, established by producer Norman Lear and his wife.

Burton’s new appointee is retired actress Julie Sommars. Villaraigosa appointed Crystal Lui, a retired accountant and wife of former Court of Appeal Justice Elwood Lui.

The California Supreme Court appointed Los Angeles County Superior Court Judge Madeleine Flier and Santa Clara Superior Court Judge Rise Jones Pichon to the commission.