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Don't Forget, It's Still the People's Court : Proposition 190: The panel that oversees judges needs revision, but it shouldn't be beholden to three politicians.

November 03, 1994|J. CLARK KELSO | J. Clark Kelso is a professor of law at McGeorge School of Law, University of the Pacific.

One of the important ballot propositions we will be considering Tuesday has received almost no publicity, either pro or con, yet it deserves our careful attention. Proposition 190 proposes an amendment to the California Constitution to radically restructure and reform the Commission on Judicial Performance.

The commission is responsible for evaluating the conduct of all of California's judges, including the judges on our Supreme Court. If the commission determines that a judge has misbehaved in office, a determination made after an investigation and hearing, it can impose sanctions, ranging from a letter of reprimand to a recommendation of dismissal.

There is widespread agreement that some of the commission's procedures need to be changed. Most serious, the commission has operated under a cloak of secrecy that is inconsistent with the public's right of access to important governmental processes. Unfortunately, while Proposition 190 addresses that issue by opening up many of the commission's proceedings, other provisions in the proposition are potentially so harmful to justice in California that a no vote is warranted.

The most serious threat comes from the way the members of the revised commission would be selected. The panel would have 11 members, three of whom would be judges appointed by the state Supreme Court. Appointments of the remaining eight members would be split up among the governor (who would name four members), the Speaker of the Assembly (two members) and the Senate Committee on Rules (two members).

The appointments by the governor, Speaker and Rules Committee would not be subject to any review or confirmation process. Those eight members would thus be directly accountable to the three persons who gave them the job: the governor, the Speaker and the chairperson of the Senate Rules Committee, who is also the president pro tem of the Senate.

Giving politicians the unrestricted power to make appointments may be appropriate when staffing local or statutory offices, but that is not the way to appoint constitutional officers. Appointments by a single person, such as the governor or the Speaker, carry with them a significant risk that the person appointed will ignore the public interest in favor of pleasing the person who appointed them.

That is why our Constitution generally limits the governor's power by making nonjudicial appointments subject to confirmation by the Senate. A person appointed by the governor and confirmed by the Senate is not directly accountable to any single appointing authority, but that person is accountable only to the public interest. That is how separation of powers and our system of checks and balances were intended to operate.

Remember, the revised commission would have power over all of California's judges, including the Supreme Court justices. Do we really want our appellate justices and our trial judges subject to disciplinary review by a commission that is beholden to three politicians in Sacramento? I don't. Nor does Judge Joseph Wapner of "People's Court," who has announced his opposition to Proposition 190.

A no vote on Proposition 190 is not a vote against reform of the commission. It is a vote against giving individual politicians the power to make unrestrained appointments to constitutionally important offices. The commission can be reformed without undermining the separation of powers and threatening the independence of our judiciary. Don't let the politicians take over the people's courts.

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