CJP's Charges Against Presiding Justice Kline Raise the Question: Why?   By Kenneth Ofgang

The furor over the Commission on Judicial Performance's filing of disciplinary charges against Presiding Justice J. Anthony Kline, over a dissenting opinion in which he declared that he "could not follow" a high court decision, has raised much consternation in legal circles.  

It has raised disturbing questions about the role of the commission, not the least of which is: why? 

Why has Kline been singled out for -- in the commission's eyes -- deliberately disregarding precedent, when no such action has been taken in seemingly similar circumstances in the past?  

The commission did back off two years ago, when it followed the recommendation of the special masters and dismissed charges that Tulare Superior Court Judge Howard Broadman knowingly violated the law in ordering a child abuser to use an implanted contraceptive device as a condition of probation.  

But no one sought to discipline controversial Rio Hondo Municipal Court Judge Richard Van Dusen for his rulings in the 1990 case of George Peter Irving, a priest who blocked the door to a local abortion clinic. Van Dusen made headlines during the trial when he allowed Irving to present a "necessity" defense, and again when he dismissed the case on his own motion after the jury in the case deadlocked 11-1 for conviction. 

The rulings struck many, including the prosecutors, as being more reflective of the judge's personal biases than any reasoned view of the law.  

The Appellate Department reversed the dismissal, and the District Attorney's Office began filing blanket affidavits of prejudice against Van Dusen. But nothing was heard from the CJP, and the judge remains on the bench -- having won one contested and one uncontested election since.  

Of course, Van Dusen's actions predated the 1994 adoption of Proposition 190, which reconstituted the commission with a majority of lay members. But the present commission could have acted, and could still act, because the events occurred during the six-year period preceding the judge's current term.  

One can only suppose how some of Kline's detractors, who have described the legal affairs secretary to then-Gov. Jerry Brown as a "doctrinaire liberal," would react to the commission's attack on an "activist" judge with an anti-abortion bias.  

And what of Napa Superior Court Judge Scott W. Snowden, who defended what the Court of Appeal characterized as a "standard practice" of requiring drug offenders to agree to waive credit for time served in the event they failed to complete residential drug treatment and were sent to jail upon revocation of probation.  

In sentencing a methamphetamine user named Tiffany Anne Penoli, Snowden defended his practice, even as he acknowledged a state law granting credit for time served in those circumstances.  

In language remarkably similar to that which has landed Kline in trouble, Snowden said he would continue to require waivers of the credit "until there is specific case law that says having that as a standard practice is an excess of jurisdiction or an abuse of discretion." 

The judge acknowledged that his practice conflicted with the statutory policy of encouraging efforts at rehabilitation, but declared: 

"I think my reasons are better than the Legislature's reasons. As long as I think I have the legal power to act on mine I'm going to do it." 

In ordering Snowden to re-sentence Penoli, the Court of Appeal said the judge had improperly ruled "based on the court's disagreement with legislative policy judgments." 

The panel declared: 

"The discretion granted sentencing courts must be exercised with a view toward effectuating, not frustrating, legislative policy....A sentencing determination predicated on the judicial repudiation of legislative policy constitutes an abuse of discretion." 

The Court of Appeal reversed and remanded, with directions to Snowden to follow the law -- just as Kline said he would comply with a mandate from the Supreme Court to follow its ruling on stipulated reversals.  

The opinion in People v. Penoli can be found at 46 Cal.App.4th 298. The author: Presiding Justice J. Anthony Kline.