California Chief Justice Ronald M. George, concerned about ethical improprieties by retired judges who serve on trial courts while engaging in lucrative private judging, has ordered the state's jurists to make a choice between the private and public sector by today.
The new policy, which changes decades of practice in California, is intended to draw a line between the courtroom and the state's huge private judging industry. It will close a revolving door that has made many retired judges wealthy and raised questions about conflicts of interest on the bench.
George said he knew the decision would not be popular with judges, "but I thought it was the right thing to do." He set the deadline several months ago.
Private judges decide civil disputes for litigants who pay them. Many corporations and well-known figures prefer the private judging system because matters can be resolved expeditiously and out of the public view. Consumer groups counter that the system, often forced on individuals in contracts and during hiring, favors corporations.
George said that some retired judges serving in Superior Courts have solicited business from the bench for their private judging businesses. He also is concerned that the public might think judges with private business could favor litigants who are potential future clients. Particularly galling to George is the case of a Los Angeles judge, whom he declined to identify, who called a recess in a complicated trial -- in which a jury had already been seated -- to attend to his private judging work.
Judges who have straddled both lines of work strongly oppose the new rule and predict it will lead to an exodus of some of the state's most experienced jurists from public courtrooms. In many counties, courts rely heavily on these assigned judges to come out of retirement and share the workload.
Retired Alameda County Superior Court Judge Richard A. Hodge predicts 80% of the retired judges who now sit by assignment in the Alameda court will choose to work full time as private judges. Hodge is among them. He said that, in addition to his state pension, he can make $4,000 a day deciding matters for paying litigants in a private setting, compared with $513 a day on the court.
But the separation is painful.
"I feel I have been cut off from the family of judges," Hodge said. "Truthfully, I don't feel I am a judge anymore."
On the other side are judges who consider George's decision long overdue and complain that the private judging system is corrupting California courtrooms.
"My own view is, this concept of a private judge is an oxymoron," said Court of Appeal Justice J. Anthony Kline. "A judge by definition is not economically dependent on the parties whose disputes he is adjudicating. That is not true in California, and therein lies the problem."
During the past couple of decades, the private judging industry in California has exploded. Judges on the bench who are approaching their 20-year retirement dates frequently ask to be transferred to Civil or Family Law courts to build resumes and contacts for future work in the private system. Those courtrooms can become business opportunities.
"The judiciary is used as a steppingstone to wealth," said retired Sacramento Judge Barry Loncke, who serves exclusively in the trial courts. Under the state Constitution, the chief justice has sole authority for assigning retired judges to Superior Courts. George said this provision gives him the ability to establish the policy himself.
Last year, about 365 retired judges signed up to serve on trial courts. George expects the number to drop to about 250 as a result of the new rule. "We can absorb the loss," he said.
In Los Angeles, Presiding Judge Robert Dukes said the effect of having fewer retired judges willing to serve "will not be as dramatic as it would have been" because the court is closing courtrooms to accommodate budget cuts.
Retired Los Angeles Superior Court Judge Jaime R. Corral is one of the Los Angeles judges who will no longer serve on the bench because of the new rule. He previously worked on assignment, primarily in Juvenile Court. "I think it is somewhat unfair that we all get punished for the evils of a few," Corral said.
Corral spent most of his career on the bench in Juvenile Court, but he asked to be transferred to Civil Court six years before his retirement "so I could be exposed to the civil bar" that hires private judges.
He didn't get the downtown courthouse, which handles most of the civil cases and can be a boon to judges who plan to judge privately upon retirement. "I worked out of Pasadena ... so my business is a little slower to come," Corral said. Still, he did meet litigants who have since hired him in the private sector.
"It does work," he said.
At the time, Corral said, he feared he might feel pressure to rule a certain way so he could develop a reputation that would bring him corporate clients when he retired. But once he began handling civil cases, he said, it never entered his mind to favor one side. "You do what's right, and if they don't like it, they don't come back to you."
Family law also is a profitable area for retired judges in Los Angeles because well-known people often prefer to have their divorces settled in private settings.
"It is viewed as a business opportunity for many judges," said Sacramento's Loncke. Trial judges who retire at age 60 after 20 years receive 92% of the current salary for Superior Court judges or roughly $105,000 at current rates. The state pays them an additional $513 a day to serve as "assigned" judges in the courts.
"It seems like it is generous enough," Loncke said. But private judging is substantially more lucrative, with some making several thousand dollars a day on top of their judicial retirement. California Supreme Court justices have even retired from the powerful court to go into the business.
Justice Armand Arabian, appointed by former Gov. George Deukmejian, left the state high court in 1996 after earning full retirement benefits and became a private judge. Legal newspapers carried advertisements for the "Arabian Knight" who could be hired for private judging by calling 213-ARABIAN. The prefix has since changed to 323. Arabian, who does only private judging, said the new policy is needed because the current system is "just ripe for potential conflict."
Although private judges have less prestige and less authority than judges on the bench, the lure to work privately is strong. "They still call you 'Your Honor,' " Arabian said. But "you don't wear a robe." Based on judicial retirement reports he reads, Arabian estimates that more than half the judges who retire in California now pursue private judging.
The rule to remove private judges from the bench is the most recent step taken to deal with potential abuses in the private system. The state Judicial Council, the policymaking body for courts headed by George, adopted ethics standards last year for private arbitrators in California.
The new standards are wide-ranging, requiring arbitrators to make disclosures and to shun gifts and job offers from lawyers and clients in an arbitration. Many private judges complain that the requirements are onerous, expensive and time-consuming.
The New York Stock Exchange and the National Assn. of Securities Dealers' Dispute Resolution Corp. were so incensed that they sued the Judicial Council to block the rules. Some Judicial Council members were served notices of the suit in their courtrooms. A federal judge dismissed the suit, and the case is on appeal.
Although many private judges applaud the new rules, some describe their elimination from the bench as a slap in the face. "The unmistakable implication is that retired judges in the private sector have become so venal and corrupt that they can no longer be trusted with the public's work," retired Alameda County Superior Court Judge Hodge wrote in a letter to the Administrative Office of the Courts.
George, however, countered that they are not being permanently expelled from the bench. If retired judges decide to give up their private clients, they are welcome back to California's courtrooms, he said.
"Some ask why don't I just go after the people who are abusing the system," George said. "But how can I tell what a judge is doing in his or her lunch hour. I would have to have a hall monitor down there observing what judges on assignment are doing."