California Bar Journal
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violating ethical canons when he refused in a dissent he wrote last year to follow a Supreme Court precedent. His action violated two separate canons of the Code of Judicial Ethics requiring judges to “respect and comply with the law” and “be faithful to the law,” the commission charged.

The allegations mark the first time a judge has faced discipline for a legal opinion.

The charges stem from Kline’s refusal last December to vote for a motion to grant a stipulated reversal, a controversial Supreme Court precedent which permits litigants to settle a case after a jury has already decided in favor of one of them.

Matter of conscience

Kline, a critic of stipulated reversals who has testified in Sacramento in favor of reversing the Supreme Court decision, wrote in his dissent in Morrow v. Hood Communications Inc. that “as a matter of conscience” he could not apply the precedent because it is “destructive to judicial institutions.”

That precedent was established in 1992, when the Supreme Court approved an unusual settlement in Neary v. Regents of the University of California, which permitted UC to pay a Chico rancher $3 million if he agreed to wipe off the books a $7 million jury award he won earlier.

The U.S. Supreme Court banned those types of settlements in federal courts in 1994, and the California Judges Association supported legislation to overturn the Neary decision the same year. Gov. Wilson vetoed the bill.

In a nine-page letter to the commission in March, Kline, 59, wrote, “I believe the doctrine for which Neary stands--which permits a party with the necessary economic means to purchase the reversal of an adverse judgment not shown to be erroneous--undermines the integrity of the judicial branch of government, because it converts the judgment of a court of law into a commodity that can be bought and sold . . . . I feel morally and intellectually obligated to resist the doctrine and to urge our Supreme Court to repudiate it, as has the Supreme Court of the United States.”

At the same time, however, Kline noted, as he did in the Morrow dissent, that while he will refuse to apply the Neary rule when asked to by litigants, “I will of course comply with an order of the California Supreme Court to grant a particular request for stipulated reversal,” which he characterized as a “ministerial act.”

Kline also said that if he committed an error (which he does not concede), errors of law cannot be a basis for judicial discipline.

“That’s where the mistake is,” agreed Kelso. “It seems a substantial overreaction to take one paragraph in a well-done dissent and to say that by writing that, you’ve committed misconduct.”

No acquiescence

Kelso believes the fact that Kline acknowledged a doctrine but said he would not acquiesce to it is what caught the commission’s attention. Some legal experts say that amounts to a refusal to uphold the law.

Fresno Superior Court Judge Dwayne Keyes, president of the California Judges Association, said the issue becomes complicated at the appellate level. “For a trial court judge to say ‘I won’t follow the law,’ I think that judge is in trouble,” Keyes said. “But it takes on a different look when it’s a minority opinion in an appellate decision.”

Kelso characterized the notion that judges should always follow the law as “a simplistic syllogism.” A bigger question, he said, is, “what is the law?”

The Neary doctrine, he pointed out, is a judicially created rule which has been subjected to substantial criticism and rejected by most scholars. “The law changes, particularly when you’re talking about a court-made rule,” he said.

Judges in several courts throughout the state, including San Francisco, Alameda, Los Angeles and San Diego, have registered their objections to the disciplinary charges.

ABA involvement

In an unusual move, ABA President Jerome Shestack wrote to CJP director Victoria Henley asking that the investigation be dropped.

“It is difficult to understand how a reasoned, measured, rational dissent can become the subject of a disciplinary inquiry,” Shestack wrote.

He also expressed concern about the “chilling effect” of the inquiry. “It is possible that judges across the state will hesitate to express dissent on controversial matters because of the threat of similar inquiry,” he wrote. “This unnatural limit on judicial thinking does a disservice to the public and to the tradition of judicial independence.”

Lawmakers in Sacramento reacted by reopening a hearing on Sen. Quentin Kopp’s so-called bill of rights for judges, which had drawn the commission’s opposition. The Assembly Judiciary Committee had passed a scaled-back version of the bill, but decided to reconsider after the action against Kline was announced.

Kopp, no fan of Kline’s, wants to protect judges from investigation or discipline for a judicial decision, whether oral or written, rendered in good faith. A hearing was scheduled for July 28.

Henley could not be reached for comment.

Political charges levied

Because of a perception that it did not adequately discipline errant judges, CJP was reconstituted by Proposition 190 to include six public members, three judges and two attorneys. Each is appointed by either the governor, the legislature or the Supreme Court.

Because the majority of panel members are Republicans and Kline is a well-known liberal judge who once served as former Gov. Jerry Brown’s judicial appointments secretary, some observers wondered how political the commission’s action was. In addition, its vote on the Kline matter was confidential, leaving those questions unanswered.

“I have no reason to believe there’s politics behind any of this,” said Kelso, who favors more open proceedings.

No response allowed

The secrecy of its deliberations has essentially disabled the commission, he added, because it cannot respond to the criticism.

Kline had 20 days after the charges were filed to respond. The commission may request the Supreme Court to appoint three special masters to hear the matter and make a recommendation to the commission.

Kline could be censured, suspended or removed from the bench.