Metropolitan News-Enterprise

 

Tuesday, August 4, 2009

 

Page 7

 

PERSPECTIVES (Column)

Presiding Justice J. Anthony Kline Goes Off the Deep End at Commission Hearing

 

By ROGER M. GRACE

 

Court of Appeal Presiding Justice J. Anthony Kline of the First District’s Div. Two displayed fury last week at a confirmation hearing for a new member of his court, labeling a rating by the State Bar Commission on Judicial Nominees Evaluation “bull crap.”

 A report by staff writer Mike McKee in Friday’s issue of the San Francisco Recorder says that “[w]ith a full head of steam, J. Anthony Kline roared to the defense of Kathleen Banke on Thursday.”

Klein, as the seniormost presiding justice in the district, sat on the Commission on Judicial Appointment, along with Chief Justice Ronald M. George and Attorney General Jerry Brown, in passing on the nominations of three persons to the San Francisco-based appeals court.

McKee’s account says that “Kline erupted during Banke’s hearing while questioning Jonathan Wolff, chairman of the State Bar’s Judicial Nominees Evaluation Commission, about Banke’s rating.” According to the article, the jurist wanted to know whether the shortness of her tenure on the Alameda Superior Court—three years—was the only reason she was rated less than “well qualified” or “exceptionally well-qualified”; Wolff confirmed that it was; Kline thundered:

“Well, that’s bull crap.”

The Recorder’s piece quotes Kline, who will be 71 on the 17th of this month, as telling Wolff that this was “the first time I can remember that I have felt that your rating was completely divorced from reality,” insisting that “rarely do we get nominees with the background of Judge Banke,” and proclaiming: “It is commonly believed that this is a gross underevaluation of this candidate.”

I don’t know whether it was or wasn’t a “gross underevaluation.” Like Kline, I haven’t seen the confidential questionnaires filled out by people who have dealt with Banke; like Kline, I was not privy to the interview of the applicant by the subcommittee; like Kline, I was not present at the discussion of the rating by the full committee.

I do know that JNE commissioners devote many hours of volunteer labor in arriving at evaluations. I know that because my wife, Jo-Ann, was on that commission from 2000-2004, lugging home huge files and reviewing them into the wee hours of the morning.

There are two commissioners assigned to the initial review of any given Superior Court applicant and three commissioners to a prospective appellate court appointee—meaning frequent jaunts to other parts of the state so that commissioners and the candidate can meet together.

From what I’ve discerned while Jo-Ann was on the commission, and in talking to commissioners who came on later, the significance of the task is appreciated, and dedication to it is at the highest level.

Moreover, there’s something to be said for the view that a judge who has not shone on the trial bench does not merit a rating of better than “qualified.” In Thursday’s Recorder is an article, also by McKee, that quotes Banke as having said, apparently in her personal data questionnaire: “Given my relatively recent appointment to the trial court bench and the nature of my assignment, I have not presided over any case I’d characterize as publicly significant.”

Of course the ratings by JNE are subject to being questioned, challenged, criticized. I wonder, however, if Kline is someone with credentials for gauging fitness of persons for judicial office. As of some years back, he clearly wasn’t.

He was legal affairs secretary to Gov. Jerry Brown. In a real sense, “Jerry’s Judges”—as appointees to judicial posts were then denominated—were also “Tony’s Judges.” Some appointments by Brown were sound, but there were many, all too many, that weren’t.

Jerry and Tony, who were back together Thursday as co-commissioners, put into power as chief justice someone who had attained no higher spot in law than that of deputy public defender in Santa Clara County. Too disputatious to lead, too much an ideologue to persuade, Rose Bird antagonized, incited discord, and cast the judiciary into disrepute. Turmoil ensued—with, at one point, the entire California Supreme Court coming under investigation of the Commission on Judicial Performance in proceedings that were, at first, televised.

From 1975 until Kline was appointed to the San Francisco Superior Court in 1980, Jerry and Tony did much mischief. They chose a large number of judges from the ranks of women and minority lawyers—which is fine…except that lawyers were appointed simply because they were women or minorities, without the further proviso that they be able. They ruined lives of those who, like Bird, could not withstand scrutiny.

One case in point is Henry Patrick Nelson, a black lawyer, named by Brown as a Los Angeles Superior Court judge. A tyrant on the bench, he resigned on the eve of Commission on Judicial Performance proceedings which, if they had proceeded, would surely have resulted in his ouster.

To make Brownie points in the Korean community, at a time when few Korean Americans were California lawyers, they hunted down such a lawyer in Korea. Kenneth Chang was appointed in 1980 notwithstanding that he was dying of cancer. His medical condition surfaced not when he was appointed, but when he was challenged at the polls in 1982. He had spent only three days on the bench in a one-year period. Chang told me that he couldn’t help it that he was sick. No, but should he have been appointed? Kline said he thought Chang was in remission. That was an inadequate response. The man died in 1982, shortly after suffering the indignity of rejection by voters.

There are numerous other examples. It is clear that Brown and Kline were, even if their motives were noble, co-conspirators in the sabotaging of California’s judiciary.

Significantly, the State Bar Commission on Judicial Nominees Evaluation came into existence in 1979 in reaction to the outrageousness of Jerry Brown/Tony Kline appointments. It is therefore ironic that Kline would be bad-mouthing a JNE rating based on the premise that he knows better than it.

There are no recusal standards for members of the Commission on Judicial Nominees Evaluation. It’s up to the individual member of the commission to decide whether to bow out in a particular instance.

Since a governor ought to be appointing persons to appellate posts who are prominent in the legal community and, with respect to elevations, well known in the judiciary, it is inevitable that members of the three-member commission will oft times have personal knowledge of, if not acquaintanceship with, nominees.

If Kline, who sits in San Francisco, has had interplay with a Superior Court judge who sits in a courtroom across the bay, it can hardly be said that there is any obligation on his part to back away from casting a vote on confirmation.

On the other hand, Kline was obviously so “emotionally embroiled” in the matter, so incensed at the labeling of Banke as merely “qualified,” that he berated the commission’s finding, resorting to crude language in characterizing it.

Whether Kline is so enamored of Banke’s qualities as a judge, or so offended by a downgrading of an appellate court nominee based on shortness trial court experience—Brown elevated Kline to his present post after only two years on the trial bench—he should not have been voting on the confirmation. Improperly, he acted as both advocate and decision maker.

Under a commission guideline, if the presiding justice with the longest tenure in the district is “recused or unavailable, the presiding justice of the affected district who has presided next longest as presiding justice…shall serve.” In the First District, that’s Presiding Justice Barbara J.R. Jones, who has headed Div. Five since September, 1998.

Since George and Brown voted to confirm, it would not have mattered from the standpoint of the outcome which presiding justice sat, or if no presiding justice was present. But from the standpoint of ethics and propriety, Kline’s participation was—well, his own choice term would fit.

JO-ANN’S PRIVATE LIFE—As I mentioned, Jo-Ann was on JNE. That was a challenging three years for both of us. It was our job, in the news department, to find out what persons were under consideration for appellate posts—and it was Jo-Ann’s duty not to tell us.

Jo-Ann and I have been married for 43 years, and have never had secrets from each other—except, that is, during the JNE years.

She got a Post Office box and had JNE correspondence sent there—I don’t even know where the box was—and had the mail brought to her each day by her assistant.

One day I was in her office when she wasn’t there, the phone rang, and I picked it up. I didn’t realize she had a private line for JNE calls. A person who was obviously an applicant starting squawking that she had learned that my wife’s assistant worked for the Metropolitan News. “Don’t tell me who you are!” I responded. I explained that the assistant had nothing to do with news operations, but I did, so she didn’t want to talk with me.

Some people assumed that whatever Jo-Ann knew, I knew. At a bar meeting, a Court of Appeal justice came over to tell of what an outstanding addition to the appeals court Candace Cooper, then a Los Angeles Superior Court judge, would be. Up until then, I didn’t know she was in contention. But I could hardly report it based on something imparted to Jo-Ann because of her membership on JNE.

Subsequently, in a private phone conversation, a judge alluded to the prospect of Cooper being appointed, and mentioned some others whose names had gone to JNE. Could I use the information, attributing it to a knowledgeable source? Rather than doing that, the jurist suggested, I should contact Court of Appeal Presiding Justice Charles Vogel (now a private judge). At a recent meeting of the Chancery Club, he had rattled off the names of all of those in contention for appellate spots.

 I telephoned Vogel; he repeated what he had disclosed at the meeting; I had the story without any tie to Jo-Ann.

Cooper served as presiding justice of Div. Eight in this district from 2001 until last year when she left the court and became a private judge. Jo-Ann and I bumped into her a few years ago and they talked about the JNE interview. It was not until then that I learned that Jo-Ann was the lead commissioner in conducting the initial investigation. I assume the rating was quite high; Cooper was smiling as she conversed with Jo-Ann, not scowling.

Then there was the time Jo-Ann kicked me out of the house.

A few days earlier, a MetNews reporter asked me if it were true that So-and-So were in contention for a judgeship. I didn’t know. He told me he had heard from a reporter on another newspaper—who was going to do a story on the possible appointment—that Jo-Ann was lead commissioner for the subcommittee investigation. All I knew was that a candidate was scheduled to come to our house on Saturday, and the plan was for me to work in the computer nook, away from earshot of the room where the interview would take place.

I related the conversation to Jo-Ann. It apparently made her antsy, and a short time before the candidate was to arrive, she asked if I would leave the house, so that any subsequent publicity would not appear to emanate from anything I had passed on to anyone.

The interview was extended. It wasn’t until the third time I phoned that I was told the coast was clear, and I could come home.

An item appeared in the Los Angeles Weekly that some woman with Democratic ties—I can’t remember her name—was possibly going to be awarded a judgeship. I assume she was the visitor whose presence forced my departure. I also assume the interview didn’t go well for her; she wasn’t appointed.

I got my revenge for that ouster from my own abode. I came into Jo-Ann’s office once and announced: “I know how you voted on Carlos Moreno.” She was thunderstruck. Moreno was then a judge of the U.S. District Court for the Central District of California who was known to be under consideration for appointment to the California Supreme Court.

“You voted ‘exceptionally well qualified,’ ” I recited, matter-of-factly. Jo-Ann was astounded that there had been a leak.

Then I put her mind at ease. The Governor’s Office, in announcing Moreno’s nomination (on Sept. 26, 2001), volunteered that the judge had drawn a unanimous “exceptionally well qualified” rating from the commission.

There was an occasion when both Jo-Ann and I got surprises. The door of the conference room had a sign on it that said, “Do Not Disturb.” I walked in, fancying that it didn’t apply to me. It did.

There was a balding, white-haired man at the head of the table, Jo-Ann was seated perpendicularly to him, with another person across from her.

Startled by my entry, Jo-Ann shrieked: “There’s nobody here!”

I was startled too. The balding, white-haired man looked familiar, and my immediate reaction was that it was Gerald Salzman, publisher of the Los Angeles Daily Journal. But what in the world would Salzman be doing there? Or, no…it wasn’t Salzman.

I retreated.

It came to me that this was a man whose photo we used to run with the opinions he authored for the First District Court of Appeal. It was Marc Poché. But how could that be? Poché was retired. He couldn’t be applying to get his old job back. That just doesn’t happen—and besides, there were only two commissioners there, and at least four are required when the candidate is seeking an appellate post.

I was baffled. Months later, I understood when staff writer Ken Ofgang told me that Poché had been appointed to the Santa Clara Superior Court. He told Ken that he had “flunked retirement.”

When Jo-Ann left the JNE Commission, it was a relief—for both of us.

 

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