Make Private Judges Toe the Line

Retired California Supreme Court Justice Armand Arabian resigned last week as a court-appointed referee in a civil lawsuit, amid charges that he had failed to disclose ties to an attorney in the case. He insists that the judge who appointed him knew of his past contacts with the attorney, although court transcripts do not indicate the matter was discussed. Arabian says he feels betrayed and abused by those who question his ethics. Yet the episode shows the need for stronger guidelines in the burgeoning field of private judging.

Arabian, who retired from the court in 1996, is one of hundreds of former jurists who now sell their services to litigants for up to $500 an hour. For those who can pay to hire a private judge, resolving a dispute this way offers speed and privacy. The opposing parties must agree to the appointment of a private judge or referee, and the rulings that result--in pretrial matters, in mediations or during trial proceedings--are legally binding.

The dramatic growth of private judging in recent years has raised fears that a separate, private court system will leave those who can’t pay with second-class public courts. The fact that money changes hands when private judges are hired also means the potential for conflict of interest always hovers near. In response to these worries, California Chief Justice Ronald M. George convened a task force in 1998 to explore private dispute resolution; last August the group recommended steps to protect the quality of justice.

These suggestions generally involve reducing the potential for interest conflicts of the sort that Arabian was accused of. For example, private judges and referees should have to disclose any public disciplinary actions against them or any past service as an expert witness or attorney for any parties before them.

These task force recommendations are embodied in proposed court rules before the California Judicial Council and in legislation (AB 2912) now moving through the state Legislature. They merit passage. As the private judiciary grows, the opportunity for misuse grows too. These measures would help ensure that even justice-for-hire hews to the highest ethical standards.