Alliance Judges Conference Ends|With Call to Action on Governance

     PALO ALTO (CN) – A call to action closed the first conference of the Alliance of California Judges with a rousing speech by Judge Steve White on Sunday calling for greater democracy in governing the courts.
     The conference included a well-attended ethics panel that focused on the practice of law’s devolution towards the barnyard, and on changes to the judicial canons of conduct that could be used to discipline trial judges who don’t take instruction from the central bureaucrats of California’s judicial system.
     “The design is at fault,” White inveighed at the close. “When you have a design that provides for no accountability except to one person, not to the other branches of government, the public or the judges that are the judiciary, it’s got to be changed.”
     The Alliance has battled the Administrative Office of the Courts on a range of fronts, from the half-billion dollars spent on a defunct software system to the bureaucracy’s size, pay and efforts to influence policy.
     “When you have a situation when the people who are responsible for the malfeasance, or just plain sloppiness of administration, and when the governance doesn’t repudiate it and doesn’t take strong steps to make sure it doesn’t occur,” said White, “it’s a strong indication that the governance structure has got to be changed.”
     The current structure for governing the courts is that the chief justice appoints judges to the Judicial Council which then votes on policy issues.
     White pressed for change in that structure either through a constitutional amendment that would allows judges to vote for council members or through legislation that would limit the council’s power to advising the chief justice and passing on court rules.
     “We must lead the way to achieve one or the other,” he concluded. “This is a call to action.”
     The Alliance counts roughly 400 members, but does not disclose the membership list. A hand count of those attending an ethics panel on Sunday came to more than 100 judges, an estimate was confirmed by conference organizers.
     Formed in 2009, the group has pressed for the independence of trial courts and resisted the effort to centralize finances and policy in the administrative office, pressing on the office’s financial mistakes and what the trial judges describe as arrogance and bloat.
     It stands alongside the much older and larger California Judges Association, but in recent years the two organizations have taken similar positions on the enormous amounts of money spent on a failed software system and the need for reform in the administrative office.
     The maiden conference for the Alliance was co-sponsored by the Law and Economics Center at George Mason University School of Law and took place at the Sheraton Hotel in Palo Alto. Despite the heavy subject matter, the brightly-lit conference and dining rooms were leavened with camaraderie and humor.
     The keynote speaker on Saturday evening was Ninth Circuit Court of Appeals Judge Carlos Bea who advised the trial judges on how to create a bulletproof record for appellate review. He advised discussing evidence in their rulings even if they found it unconvincing.
     The judge described the Alliance as “an organization whose weight is increasingly being felt in California judicial circles.”
     Sunday’s ethics panel was a hot ticket for the conference. According to judges involved in judicial politics, former chief justice Ron George would use ethics charges to punish judges who spoke against policies enforced by his administrative office.
     George retired in 2010, and Chief Justice Tani Cantil-Sakauye took office in January 2011.
     The ethics rules have now been changed by the California Supreme Court with the changes coming into effect at the beginning of the year. Violation of the rules, or canons, subject a judge to discipline before a judicial commission.
     One new canon says that judges should not make any comments, public or private, that could be construed as having formed a premature opinion on a pending case.
     “They’re going to fall back on this rationale that judges must be bound to accept more restrictions,” said retired Judge Julie Conger. “Don’t like more restrictions on your free speech? Fine, then don’t take the bench.”
     She presented the changes to the conference alongside Judge Dodie Harman of San Luis Obispo and Justice Tom Hollenhorst of the 4th District. Conger and Hollenhorst have been educating fellow judges on ethics for 30 years, and started the ethics committee for the California Judges Association.
     Conger warned that non-public comments “governs even comments made within the privacy of your own home,” to friends, family members or even spouses.
     “In the confines of your home with your best friend, we are now exposing ourselves if we make any kind of statement,” said Judge Robert Dukes of Los Angeles from the audience.
     “It would seem to me those provisions suffer a real potential constitutional weakness,” added Judge Andy Banks from Orange County.
     “I’d love to agree with you,” Conger said.
     Another change adds the words “competently” to one of the judicial ethics canons, adopting the words, “A judge shall perform the duties of judicial office impartially, competently and diligently.”
     This seemed even more troublesome to the judges, as the word competently may directly relate to mandatory judicial education courses through the California Center for Judicial Education and Research (CJER). These courses used to be voluntary and taught by judges, but are now mostly directed by staff at the courts’ central bureaucracy, the group the Alliance has been trying to cut down to size.
     “You now have to be not only impartial and diligent, you have to be competent. At first you may say that doesn’t seem to be a big deal, but the question is what is competence,” Harman said. “To me they are saying we can now discipline you if you do not participate in judicial education.”
     The judicial practices commission cannot discipline judges based on legal error alone, more is required. Harman said she is concerned that the California Judicial Practices Commission will see a judge’s non-participation in education classes as additional grounds for investigation.
     “I have some real concerns about putting in this word competency and letting us know it’s about judicial education. I can see CJP using your lack of judicial education as the ‘more,'” said Harman. “I’m just concerned about how they’re proceeding at this point,” she said.
     “I would hope that if you make a ruling different from what is taught in a CJER guide that the court of appeal would uphold you,” she added, “I still believe we’re here to rule on the laws, what the law says.”
     Another significant change to the canon demands that judges “take corrective action whenever a lawyer has committed misconduct or has violated the rules of professional misconduct.”
     Hollenhorst said that while judges should protect themselves by making an official record when they reprimand judges, the rule is not a bad idea.
     “The practice of law has gotten a little bit out of control with lawyers being indifferent to rules and professional conduct. It’s become basically like a barnyard,” he said. “As a young kid out of law school, we were always afraid of what the courts might say.”
     He added that one judge once described an attorney colleague as “a thug with a tire iron.”
     “You never wanted that said about you,” Hollenhorst said. “But things have slipped quite a bit in terms of how lawyers behave.”
     Hollenhorst joined in the alarm raised by Conger and Harman.
     “In my 32 years in the business, I’ve seen a lot of changes in the way CJP operates. It was once a compliance agency. It’s a lot different today,” he said. “I know they are somewhat sensitive to criticism. California Judges Association has been criticizing them for a year. Maybe there’s been some loosening of the way they operate. But there’s just no doubt that they’ve become far more punitive. Everything is much worse than it’s been in the past, so you have to protect yourself.”

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