Private Justice Can Be Yours if You’re Rich
You don’t need me to tell you how grand it is to be rich in California. You don’t have to care about the condition of public education, because your kids go to private school. You don’t have to worry about higher park fees, because you can lock up access to your private beach and hire thugs to run off any riffraff who get near the water. You don’t have to do your own gardening, because there are plenty of illegals around to trim your perennials.
And you don’t have to subject yourself to litigating your private disputes in open court, because you can buy yourself a judge to run interference for you -- under cover of the state Constitution, no less.
If your private judge violates state judicial rules and bends the public court system to your personal ends, what’s the downside? Your judge is outside the reach of the state’s disciplinary system for misbehaving jurists. If your case happens to involve matters of manifest public importance and interest, too bad about the public. After all, the system belongs to you.
Many states allow retired judges to fulfill limited judicial roles -- as referees in evidentiary disputes or as fill-in judges to relieve docket gridlock, for example. But California, apparently uniquely, is much more liberal. Its Constitution allows attorneys and ex-judges to conduct actual trials in the guise of temporary jurists. Once selected by litigants, they’re sworn in as Superior Court judges and endowed with almost all the powers and authority of any active judge.
They then proceed to abuse their power. Documents and hearings in the cases before them are supposed to be public, but often the papers don’t end up in public files, trial schedules are kept secret, and even those that leak out are held in private offices behind layers of building security. The sealing of a court document is an important decision that involves a core principle of the public judicial system; these judges do it all the time, secretly, simply by sticking sensitive papers in their briefcases and dodging requests for access.
So justice ends up belonging, like a private preserve, to the rich and powerful -- indeed, anyone who can pay a judge $400 to $500 an hour. It’s unsurprising that the public knows little about this system because the judicial establishment isn’t even sure how widespread it is; court clerks don’t keep a tally of how many cases are tried by privately paid temporary judges.
But the number is obviously huge. One Northern California private divorce judge told me she handles more than 20 cases at a time. Brad Pitt and Jennifer Aniston hired a private judge to preside over their divorce, as did Charlie Sheen and Denise Richards and investment billionaire Ronald Burkle and his ex-wife, Janet. Michael Jackson hired a private judge to hear his custody fight over his children with ex-wife Debbie Rowe. What all had in common was the need to secure formal, legally enforceable judgments and a distaste for the wear and tear of going to court to get them.
Instead of reining in this system, the Legislature is preparing to expand it. A bill to give temporary judges the authority to seal many documents in divorce cases is currently moving through Sacramento, despite evidence that temporary judges have overstepped their nonexistent authority in the past.
The corrosive influence of this two-tier system is hardly a secret. In 1992, when a plan to expand the authority of temporary judges came under consideration, Los Angeles Superior Court Judge Robert H. O’Brien complained in a letter to state court administrators that “the appearance of a dual system -- one for the wealthy, one for the poor (or even not so wealthy)” was a “real evil.” He dismissed the most frequently heard justification -- that the public dockets were jammed -- as a “feeble rationalization” for the creation of a moneymaking scheme for retired trial judges. (Court documents indicate that retired Superior Court Judge Stephen Lachs, whose current rate is $475 an hour, collected $73,000 in just over a year on the Burkle matter alone.)
One corrupting feature of the process is the immunity of privately paid judges from disciplinary action. The state Commission on Judicial Performance, which has the power to remove ordinary judges from the bench, has no jurisdiction over temporary judges, even when they misbehave. Even a county’s presiding judge is powerless to force temporary judges to comply with local procedural rules.
And their treatment of the rules can be extremely casual. Consider the runaround -- there’s no other word for it -- on which Judge Lachs has led the public in the Michael Jackson custody case, over which he presided until December, when Jackson accused him of bias and asked him to step down. Jackson may be the focus of somewhat overheated tabloid attention, but the judicial system’s response to a serious charge against someone so prominent -- Rowe has accused him of abducting their two children to Bahrain -- is plainly a matter of legitimate public concern.
Under Lachs, however, documents required by local court rules to be filed with the Los Angeles court clerk never wound up in the files, but remained in his possession. Hearings were scheduled but not divulged. At a hearing in December, Lachs ejected a reporter for TMZ.com, an entertainment news website, on grounds that sensitive custody issues were to be discussed; in the event, the only topic covered behind closed doors was the motion by Jackson’s attorneys to oust Lachs from the case. (Lachs never responded to my requests for comment.)
Why should we care about this? Not only because the very idea of two-tier justice should enrage every citizen, but also because as conditions get better for the privileged, they become worse for everyone else. As long as the wealthy and powerful can buy their own civil justice, they won’t care if the rest of the system goes to hell, and the road to its collapse will become ever steeper.
Golden State appears every Monday and Thursday. You can reach Michael Hiltzik at firstname.lastname@example.org and view his weblog at latimes.com/goldenstateblog.