When Michael Jackson’s wife wanted out of their marriage, the pop star hand-picked and paid the retired judge who signed off on a prearranged deal giving Jackson sole custody of their two children.
Jackson did not have to set foot inside a courthouse to finalize his 1999 divorce from Deborah Rowe, avoiding the kind of glaring public scrutiny he encountered last year when he was tried on and acquitted of child molestation charges.
Like Jackson, many of California’s rich and famous are paying retired jurists up to $550 an hour to quietly end their marriages, divvy up their property and decide who will care for their children -- an arrangement that some critics fear is creating a separate and secret justice system for those who can afford it.
The decades-old debate over privately paid justice was reignited in recent months when the media was denied access to the Jackson case in addition to divorce files and proceedings involving billionaire supermarket magnate Ronald Burkle, who paid a retired judge $73,000 to preside over a 10-day trial.
In response, Los Angeles court officials are trying to create safeguards to prevent elite litigants from buying secrecy in public court proceedings.
Under California law, if both parties agree, a sitting judge officially transfers the case out of the courthouse. The parties may then hire a jurist to resolve their civil disputes, even though the cases technically remain in the public court system, governed by the same rules as other lawsuits. Retired judges set their own pay rates.
“It’s relatively easy for a temporary judge to be lax at the behest of the parties,” said Los Angeles County Superior Court Presiding Judge William A. MacLaughlin, who is overseeing the reform effort.
Attorney Susan E. Seager, who represents media outlets including The Times, said the lack of public access in these two cases “may be part of a larger trend toward secret divorce-court proceedings for celebrities and the wealthy,” violating state court rules and the constitutional right of access to court records and proceedings. It is also unconstitutional for a sitting judge -- including, in Seager’s opinion, one temporarily assigned to a case -- to be privately paid by the parties.
But retired Los Angeles County Superior Court Judge Stephen Lachs, who was paid to decide the Jackson and Burkle matters, defended the system, saying celebrities don’t hire private judges “to hide things.” Private judges are popular, he said, because they can devote more time to promptly resolving their cases.
In California, litigants may transfer their disputes out of crowded courthouses into more accommodating private surroundings for full-blown trials. Unlike retired judges who act as mediators or arbitrators, private judges -- also called temporary judges -- issue final rulings that may be appealed. Those trials, even if held in lawyers’ offices, are subject to the same public access requirements as those held in courthouses.
But, in reality, most private judge trials fly under the radar. Documents aren’t always put in public court files. And proceedings, held in private offices and rented conference rooms, are difficult, if not impossible, to track.
“The rules on the books seem to be fairly clear and require that all trials and other proceedings before a temporary judge be as open and unrestricted as their counterpart proceedings in Superior Court,” said 1st Amendment lawyer Douglas E. Mirell.
The problem, he said, is that the rules are not enforced.
No one but an appellate court can compel a retired judge to play by the rules, experts say, and that process is often cost-prohibitive.
Los Angeles court leaders say they will try to nudge their former colleagues into compliance.
“No judge of our court has the ability to tell other judges how to do their job,” MacLaughlin said. Nor can a retired judge be disciplined by the state Commission on Judicial Performance for failing to maintain open court proceedings under the rules.
No one knows exactly how many disputes each year are referred to private judges. Los Angeles court officials can account for just five pending cases, all divorces. Three involve Hollywood A-list ex-couples: Jennifer Aniston and Brad Pitt; Charlie Sheen and Denise Richards; and Renee Zellweger and Kenny Chesney.
Divorce lawyers, however, say they know of several other cases.
At ADR Services in Century City, where Lachs specializes in family law disputes, 23 of the 6,000 cases last year involved public court business, mostly divorces, said Lucie Barron, the company’s founder and president. A few of the public cases involved probate, real estate and eminent domain issues.
California Chief Justice Ronald M. George said he is “concerned about the secrecy involved in some of the private judge proceedings, the fact that matters of great importance may be settled without the public’s being aware of what’s at issue or how the dispute is being resolved.”
George also worries about the public’s view of a court system that allows wealthy litigants to resolve their disputes by going to the head of the line, not having to endure long waits for overworked judges.
“Private judging performs several useful functions,” he said, “but runs the risk of creating a perception among the public that there is a two-track system of justice, one for those who are willing and able to pay the person they select to try their case and another track for those who have to wait their turn in court.
“I would hate to have some people adopt the attitude toward the public justice system that others have toward the public school system, mainly that they are not stakeholders because they do not send their children to public schools.”
High-end divorce lawyers say the issue is not privacy as much as efficiency. They say their clients prefer selecting a judge who will work on their schedule and give them as much time as needed to resolve their cases. That’s why lawyers don’t think twice about asking clients to write five-figure checks to pay the judge -- even when they lose.
“It’s our culture now,” said attorney Stacy D. Phillips, author of “Divorce: It’s All About Control. How to Win the Emotional, Psychological and Legal Wars.”
By hiring his own judge, Michael Jackson also managed for a while to keep under wraps details of his ex-wife’s allegation that he had abducted their two children and taken them to Bahrain without her consent. Public court files contained little about the custody dispute. A reporter was barred from a court hearing in the case.
In February, a state appellate court in Los Angeles ruled that Lachs had not properly terminated Rowe’s parental rights even though at the time she and Jackson agreed to the arrangement. Lachs has now recused himself, and the case has been returned to the public courthouse.
The new judge, Robert Schnider, has ordered lawyers for Jackson and Rowe to re-create the public divorce file with all the missing documents, including Rowe’s 2001 motion to terminate her parental rights.
In 2004, Lachs also presided over a trial that found supermarket magnate Burkle’s post-marital agreement with his ex-wife, Janet, to be valid. Many of those documents have been sealed; media outlets are fighting in court to review them.
Lachs defended his access decisions. He said he vacated his order sealing trial transcripts and exhibits after learning from media lawyers that he, as a private judge, lacked the authority to seal them.
L.A. County Superior Court Judge Roy Paul, the sitting judge in the case, also sealed documents, then reversed himself, declaring that a state law allowing judges to seal financial details in divorce proceedings was unconstitutional. An appellate court upheld his decision, and Burkle has asked the California Supreme Court to review it. A ruling is expected within weeks.
In the Jackson case, Lachs said he would not have done anything differently -- that he would have reached the same conclusion if he had been a sitting family law judge.
When a reporter showed up at a private office in Palm Desert, Lachs closed the hearing because, he said, it involved child custody matters. Seager, the media lawyer contended, however, that the hearing was actually about the judge’s recusal, not sensitive family matters.
As for the incomplete court file, Lachs said, “it is the responsibility of the attorneys to file original documents with the court.” If original documents were filed with him, Lachs said, he would return them to the court.
MacLaughlin, whose Los Angeles court is at the center of this controversy, advocates a statewide solution. He has appointed judges to meet with media representatives to propose changes in state law and court rules that would address public access issues, including an enforcement mechanism. MacLaughlin has also assigned Judge Charles W. McCoy to review all requests for private judges.