KLINE EDITORIAL

CONSCIENCE AND THE COURTROOM

THE STATE agency that disciplines judges has set an ominous precedent. It
has branded dissent as misconduct.

The Commission on Judicial Performance has filed disciplinary charges
against Court of Appeal Justice J. Anthony Kline, for which he could be
reprimanded or, conceivably, expelled from the bench. He is charged with
conduct that ``brings the judicial office into disrepute, improper action
and dereliction of duty.''

His offense? Not drunkenness, lewdness, dishonesty or other ``acts of moral
turpitude'' that should keep this watchdog agency plenty busy. Not
dereliction of duty either; no one disputes Kline's conscientiousness. And
not an improper action, unless under a new and dangerous definition.

His transgression was an opinion that challenged a state Supreme Court
ruling that Kline said he couldn't follow in good conscience.

Kline hoped his refusal would prompt the high court to reverse its decision.
It never got to that point. He couldn't persuade another judge on the
three-member appeals panel to agree. So his words had no impact -- except
for himself, now that the misconduct commission has intruded.

Perhaps to a layman, Kline's protest hardly ranks with moral stands over
abolition and abortion. He objected to the California Supreme Court's
decision permitting both parties, in a post-trial agreement, to erase a
lower court finding.

The concept, called a stipulated reversal, is controversial. The U.S.
Supreme Court has disallowed it in federal courts.

Take, for example, a malpractice suit in which a jury has found a doctor
guilty and awarded $1 million in compensation. The doctor's insurance
company could offer the patient $2 million and agree not to appeal, if the
patient agreed to expunge any finding of guilt or negligence.

Kline argues that stipulated agreements would undermine the judicial system
by turning trials into bargaining chips that mock a jury's work. They also
would be a tool for the wealthy to wipe out the adverse effects of a verdict.

One can debate if Kline's view is correct. The issue is whether he should be
disciplined for acting out of conscience.

Clearly, lower court judges must follow the dictates of higher courts. The
public would lose faith in the courts without consistency in rules. There
would be anarchy if trial judges simply acted however they pleased.

Kline, who has been a justice since 1982, acknowledges that. ``The refusal
of a judge -- to acquiesce -- is highly irregular and not to be lightly
undertaken,'' he wrote to the state commission.

But Kline saw his own refusal to endorse the post-trial agreements as a
practical way to get the Supreme Court to reconsider the issue. He
explicitly stated that if the court ordered him to grant the agreement, he
would. His was hardly a dangerous act of judicial disobedience.

The commission's charges are the equivalent of a secret grand jury
indictment. The case now goes to a panel of three masters, then back to the
commission.

The commission hasn't said why or how it voted, prompting lots of speculation.

Kline is a liberal jurist appointed by Gov. Jerry Brown. The majority of the
commissioners are Republicans. Six are lay members who may not grasp the
reasoning and the precedent for Kline's dissent. Whether out of ignorance or
malice, the commission overstepped its bounds and impugned the reputation of
a respected jurist. It confused an act of principle for an unprincipled act.

Checked-by: Melodi Cornett