The Commission on Judicial Performance has overstepped its bounds in bringing formal charges against First District Court of Appeal Presiding Justice J. Anthony Kline  based on a statement in a dissenting opinion, several legal observers said yesterday. 

The commission yesterday made public the charges against Kline, filed last week, accusing him of "willful misconduct" for statements he made last December in his opinion in Morrow v. Hood Communications, Inc., 59 Cal.App.4th 924.  

The charge of violating the law by writing an opinion that politely defied a ruling by the state's high court is apparently unprecedented in California.  

Kline, 59, a former civil rights lawyer, spent 51/2 years as Gov. Jerry Brown's legal affairs adviser before Brown appointed him to the San Francisco Superior Court in 1980 and the First District Court of Appeal in 1982. 

The accusations against him plunged the commission back into a dispute over its authority from which it appeared to have extricated itself two years ago.  

The commission initially charged Tulare Superior Court Judge Howard Broadman with misconduct for several sentencing decisions, including one that required a mother with a history of child abuse to use the Norplant contraceptive device. But after its power to punish judges for their rulings was challenged by the California Judges Association, the commission dropped the charges, though it still has others pending against Broadman. 

The charges against Kline seem to go even further because they are directed not at a judge's treatment of a party but at a legal opinion—and, at that, a dissent that had no effect on anyone in the case. 

"You might think he was wrong on the merits, but to think for expressing his views in that way he was behaving unethically, I've never heard of a charge like that," Stanford Law Professor William Simon, who teaches legal ethics, said. 

Even if a judge openly defies a precedent from a higher court—like the Alabama federal judge who recently refused to follow a school prayer ruling without a direct order—the remedy is in the appellate process, not the disciplinary process, Simon said.  

Los Angeles Superior Court Judge J. Stephen Czuleger, a member of the CJA executive board, said the Kline case is likely to be the subject of considerable discussion when the board holds its regular meeting Aug. 1 in San Francisco.  

Czuleger, who cautioned that he had just learned about the case and hadn't yet read the Morrow opinion as of yesterday morning, said "I can assure you I'll bring the matter up if no one else does."  

CJA President Dwayne Keyes, a Fresno Superior Court judge, also said he had just learned about the case and couldn't comment on the substance. But the CJA board will certainly look into the matter if asked to do so, he said.  

The attorney representing the association in the Broadman case was harshly critical of the charges against Kline.  

"The commission is setting itself up as a super Supreme Court to judge the actions of California judges," Boalt Hall professor Stephen Barnett said.  

John Racanelli, a retired First District justice who served on the commission from 1977 to 1988, echoed Barnett. 

"Whatever a judge has to say in a judicial opinion, in the absence of an improper motive or bad faith, that that would be viewed as a potential act of judicial misconduct...has a very chilling aspect to it," he said.  

The 1992 high court ruling in Neary v. Regents of University of California, 3 Cal.4th 273, hotly debated among lawyers and judges, upheld the settlement of a civil suit that included not only a cash payment but also the erasure of past rulings in the case. 

When his San Francisco-based court applied the ruling to uphold another settlement in Morrow, Kline repeated his past criticism—that parties were being allowed to buy and sell court judgments—and said it was "either a travesty or a charade. In either case, I refuse to participate. "He said his "conscientious refusal to acquiesce" was part of legal tradition and was intended to encourage the Supreme Court to reconsider its ruling, since neither of the settling parties was in a position to appeal. The high court declined to reconsider. 

The commission, in its formal notice to Kline, portrayed him not as a conscientious critic but as a willful lawbreaker. 

"Your refusal to follow the law as established by the California Supreme Court was in violation of the Code of Judicial Ethics," the commission said. 

A three-judge panel will hold a hearing and make recommendations before a final decision by the commission. If the commission finds willful misconduct, the most serious category of ethical violation, it could remove Kline from the bench. 

The commission, restructured by a voter-approved ballot measure in 1994 to increase its power and eliminate a judicial majority, has 11 authorized members, with one vacancy, of whom three are judges and two are lawyers. A majority vote was needed to authorize the charges. 

Chief Counsel Victoria Henley declined, under the commission's rules, to discuss the vote or the origin of the charges. Kline did not comment publicly yesterday, other than to note that he has disqualified himself from two subsequent cases before his court that raised the same issue. 

But in a letter to the commission staff in March objecting to the investigation, he said the propriety of his dissenting opinion was a legal issue, meant to stir debate and Supreme Court consideration, but outside the disciplinary agency's authority.