Justice for Hire

The explosion of private judging in California has created a nasty cycle: Judges leave the bench for lucrative private work, and that exacerbates the strain on their already overburdened former colleagues, priming the market for more private judges.

The biggest losers in all this are common citizens--litigants of modest means--who increasingly are being pinched as the size, cost and use of the private judiciary grow. State law and local court rulings have forced parties in many civil disputes, regardless of their financial status, to pay private judges to handle pretrial matters that public judges claim they are too busy to hear. That practice should stop, but at the same time the state Legislature must redress the glaring fiscal and manpower deficits in trial courts that have prompted so many judges to bolt for greener pastures.

In California, some 500 former public judges now hire themselves out to hear private disputes for fees ranging from $250 to $600 per hour. The growth of private judging has raised troubling questions about creation of a dual justice system--one for wealthy, impatient clients and another for the rest of us. There are questions as well about the impartiality of judges who are hired, and paid, repeatedly by large business clients that, over time, are involved in many lawsuits. Though the judges are not likely to ever again see individuals who bring suit, a large corporation can be a steady source of fees.

Even more troubling is the practice of requiring, as Los Angeles Superior Court judges have done in thousands of cases, that private judges preside over the discovery phase of public lawsuits. In such cases, the parties have had no choice but to bear the costs, despite the taxes they have already paid to support the courts. In the discovery phase, judges determine what information each side must disclose, decisions that can heavily influence the outcome of the trial.

Appellate courts have tried to check the practice, allowing judges to refer only exceptionally complicated, time-consuming discovery disputes to private judges and insisting that financially strapped litigants not be forced to pay. Yet some Superior Court judges have not complied, prompting stronger appellate court statements and new, more restrictive legislation.

Local court leaders and state court administrators need to insist on compliance. Better would be to end such forced transfers altogether. Best would be for the Legislature to relieve the strain on the public courts, making private judging less attractive. For that, lawmakers must continue adding new judges, upgrading courthouses and raising judicial salaries.