Pity the poor state court judge who dares speak his mind. Independence, integrity and intelligence, those qualities we have long and rightly prized in our jurists, could become cause for punishment if the Commission on Judicial Performance proceeds with its inquisition of Justice J. Anthony Kline.
The state agency responsible for disciplining judges Monday accused the veteran Court of Appeals judge of "willful misconduct." Kline's alleged transgression is hardly the commission's usual fare--conflict of interest, corruption, misbehavior such as drunk driving or sexual harassment. No, the agency is investigating Kline, a judge for 18 years, simply because he dissented from a state Supreme Court precedent in an opinion last year. In the dissent Kline declared that "as a matter of conscience" he could not adhere to the precedent and that the one in question was "destructive of judicial institutions."
It is believed that the commission has never before moved to discipline an appeals court jurist for a written opinion, and there has been an enormous outcry among many legal scholars and practitioners, along with other members of the bench.
The San Francisco judge now formally stands accused of "conduct prejudicial to the administration of justice that brings the judicial office into disrepute, improper action and dereliction of duty." Specifically, one of the state's judicial canons requires that judges "be faithful to the law."
Kline faces a lengthy investigation by the panel that could, incredibly, lead to his censure or even removal from the bench.
The commission's chilling move is all the more unusual because appellate judges hear cases in panels and Kline's declaration came in a dissent--a judicial statement that has no legal effect other than to state a judge's opinion. Moreover, the precedent he opposed, concerning out-of-court settlements that occur after a court has rendered a verdict and that wipe the verdict from the record, is a controversial one. The 1992 state Supreme Court's ruling has been criticized by several legal scholars, and the sort of post-verdict settlement it sanctioned was barred in federal courts by a unanimous U.S. Supreme Court ruling in 1994.
The commission will soon convene a three-judge panel to determine the "facts" in this case before it decides on punishment. But the truth is obvious: Kline did indeed write the dissenting opinion, and the commission's investigation appears more a witch hunt than enforcement of the judicial canons.
The commission should halt this nonsense right now by dropping the ominous charges against Kline. In 1994, California voters reinvigorated the commission by adding more public members and signaling a new intolerance for judicial misconduct. But Proposition 190 did not deputize the commissioners as judicial thought police. And as one state judge ruefully observed, "If [the commission] is going to burn Kline at the stake, it's going to become a mighty big barbecue."