California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JULY 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - July 2001
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News / News Briefs
Two-year fee bill goes to governor
Janet Reno, low-cost MCLE highlight Annual Meeting
Stanley Mosk dies at 88
State Bar wins ABA's Harrison Tweed Award for pro bono, legal access, IOLTA efforts
Foundation will accept grant applications beginning July 16
Winnebago of justice serves those on the road less traveled
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Trials Digest
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Legal Tech - Matter management is not just for litigators
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Opinion
From the President - Public members bring fresh views
Holding judges accountable
Letters to the Editor
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MCLE Self-Study
Alcohol and the workplace
Self-Assessment Test
MCLE Calendar of Events
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Ethics update...
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - Level field or a judicial practical joke?
Former DA disbarred for drunken-driving coverup
Attorney Discipline

OPINION

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Holding judges accountable
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By MICHAEL A. KAHN
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Michael A. KahnThe system of checks and balances is the crucial structural feature of our democracy. For more than 200 years, Americans have been suspicious of the accumulation of power in the hands of their government. The delegation of pervasive power over our lives to the judiciary is no exception to this rule.

For more than 40 years, the California Commission on Judicial Performance has performed a critical service in ensuring that the Code of Judicial Ethics effectively constrains the improper exercise of judicial power and authority.

The Commission on Judicial Performance has a specific mission: to protect the public, to enforce rigorous standards of judicial conduct, and to maintain public confidence in the integrity and independence of the judiciary. The commission has authority to privately or publicly discipline a judge, with censure or removal being the most severe sanctions. 

From its inception, California's lawyers have been instrumental in helping the commission to fulfill its mission. Lawyers participate in every aspect of the commission's work.  The commission itself has two lawyer members appointed by the governor (currently Marshall Grossman of Los Angeles and myself), and the commission's investigative staff, its director and, of course, its counsel, are members of the bar.

Moreover, in a high proportion of the 1,000 cases the commission handles every year, a lawyer is a witness. Lawyers also file complaints with the commission and, by and large, complaints by lawyers are among the most thoughtful and well-reasoned complaints that we receive.

The subject of complaints against judges is a touchy one. Perhaps the most important observation to make is that California's approximately 1,600 judges are as hard-working, ethical and honest a group of judges as can be found anywhere in the world.  Given the incredible burdens we place on our judges and the scarce resources we allocate to them, they perform at an extremely high level. Moreover, despite the legitimate concerns about attracting and keeping the best possible judges, it should not surprise us that our judiciary functions so well.

We have established extensive and redundant procedures to pre-screen judicial candidates and, the current governor, through the able work of judicial appointments secretary Burt Pines, has continued the tradition of placing a premium on appointing exemplary lawyers to these positions of power.

Nonetheless, despite the best efforts of all concerned to transform only the most suitable lawyers into judges and despite the best efforts of the Judicial Council, the California Judges Association, the presiding judges and others to create an environment conducive to proper judicial conduct, every year a small number of valid complaints about judicial misconduct come to the attention of the commission.

These cognizable cases require sensitive and fair treatment for all concerned. Ironically, the press, which appropriately scrutinizes judges to be sure that complaints against citizens are not rushed to judgment, often impatiently chaffs at the commission for allowing judges too much time consuming due process.

Be that as it may, the commission's rules and procedures have been carefully devised to ensure due process for the judicial officers and responsiveness to the complainant.  In no case in our 40-year history has a commission decision been set aside because of any failure to afford due process to a judge.

On the other hand, in the year 2000, the average length of time from the commission's receipt of a complaint to disposition was 3.7 months, including cases that went through the entire formal process.

The commission also takes steps to protect the rights of complainants and witnesses, including lawyers. Complaints may be filed anonymously, and the commission is sensitive to interests of privacy and freedom from collateral consequences.

Judges are powerful figures in our society and in the lives of lawyers. Advancing complaints against them is a serious and important business.  However, if the commission does its job properly, the process will proceed in a manner which protects the valid interests of lawyers in every aspect of the proceeding.

Lawyers and former lawyers (i.e., all of the judges) have a huge stake in the work of the Commission on Judicial Performance. Indeed, many lawyers spend their entire careers as trial lawyers attempting to conform their behavior to the expectations of judicial officers. Rather than allowing public confidence to be eroded by leaving misconduct unredressed, the commission, through its work, has strengthened California's judicial system. 

The commission needs lawyers' cooperation and assistance in every phase of our work. For more than 40  years, the excellent working relationship between the commission and the bar has greatly contributed to the effectiveness of the Commission on Judicial Performance. To best serve all Californians, we must ensure that this relationship will continue.

Michael A. Kahn, a partner at Folger Levin & Kahn LLP in San Francisco, is chair of the California Commission on Judicial Performance.  He also serves as chair of the board of governors of the Independent System Operator, which oversees California's power grid.