By KENNETH OFGANG, Staff Writer/Appellate Courts

First District Court of Appeal Presiding Justice J. Anthony Kline did not act in bad faith, and therefore did not violate the Code of Judicial Conduct, when he said he would not follow a Supreme Court precedent allowing parties to stipulate to reversal of appellate court decisions, the Commission on Judicial Performance ruled yesterday.

In a four-page decision, the commission formally dismissed misconduct charges against the veteran jurist. The decision officially confirms previously reported details of the commission's June 17 meeting, including its 8-1 vote, with two recusals, to dismiss the charges without a hearing.

"We recognize that appellate jurists deal with legal principles and ideas," the commission said. "It is fundamental to our system of jurisprudence that they feel free to break new ground, challenge existing assumptions, present novel legal reasoning and experiment with different approaches. In most instances they must be able to do so free from fear of discipline for the free expression of their ideas."

Kline told the MetNews:

"This is a vindication not simply for me but for the judges of this state....If our system of government is going to survive, judges need to have the freedom to do what they think the law requires."

The jurist noted that the commission was largely reconstituted in the year between the filing and dismissal of the charges. "The new commission had the benefit of [the] public debate" that occurred as a result of the case being filed, he said.

Kline said the commissioners were likely "stunned" at the criticism leveled by prominent lawyers, professional organizations, and editorialists for newspapers as diverse as the Los Angeles Times and Orange County Register.

"In the foreseeable future, the staff and the members of this commission are going to be much more sensitive," Kline said.

The only member to dissent from dismissal was Donald Vinson, a public member appointed by then-Gov. Pete Wilson.

Vinson—who publicly defended the commission's decision to charge Kline, saying it was part of the CJP's duty to protect the public—is a jury consultant from Palos Verdes Estates.

The two members who didn't participate in the vote were Kline's First District Court of Appeal colleague Daniel M. Hanlon, the commission chairman, and public member Crystal Lui. Lui's son, Bradley Lui, is a partner of Kline's attorney, James Brosnahan. Her husband, former Court of Appeal Justice Elwood Lui, was apparently engaged to testify as an expert witness on Kline's behalf prior to her appointment.

Kline was accused of willful misconduct, based on his dissent in Morrow v. Hood Communications, Inc. (1997) 59 Cal.App.4th 924. Kline argued there that "[t]here are rare instances in which a judge of an inferior court can properly refuse to acquiesce in the precedent established by a court of superior jurisdiction."

Citing two law review articles for that proposition, the jurist said he could not "as a matter of conscience apply the rule announced in Neary [v. Regents of University of California (1992)3 Cal.4th 273]."

The commission yesterday noted that the charges were brought against Kline before the state Supreme Court, in May of this year, handed down its ruling in Oberholzer v. Commission on Judicial Performance, 20 Cal.4th 371.

In a unanimous per curiam opinion, the justices said that legal error may form a basis for discipline only if it "clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty."

Kline's dissent in Morrow didn't rise to that standard, the commission said. It agreed with the California Judges Association, which argued in an amicus brief that Kline should not be disciplined because he had a "tenable belief" that the Neary rule is "destructive of judicial institutions;" because subsequent events, including a U.S. Supreme Court ruling barring stipulated reversals in federal courts, supported reconsideration of the rule in California; and because the dissent was a procedural vehicle in which to urge reconsideration of the rule by the state high court.

None of those factors is dispositive, the commission said. But it found "that in light of the CJA's brief and the confluence of these three factors, it cannot conclude that 'the argument for a narrow exception to the stare decisis principle...was so far-fetched as to be untenable.'"

Kline commented that while he would have preferred not to have been subjected to the disciplinary process, he did not regret standing up for "an extremely important principle." He did say, however, that he was disappointed that the issue of "the buying and selling of judgments" had been "somewhat obscured" by the debate over judicial independence.

"Who will defend the integrity of the system we administer" if judges won't, Kline asked rhetorically.