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Metropolitan News-Enterprise
July 21, 1998
Page 7
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Presiding Justice Kline Reminds One of the Saying: a Rose by Any Other Name... By
Sheldon H. Sloan
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A
political operative, masquerading behind black robes, has shed his cover
and revealed his true colors. Tony Kline — also known as J. Anthony Kline, or, when standing for confirmation as a presiding justice within the California Court of Appeal, as John A. Kline — has recently found himself under investigation by the California Judicial Performance Commission for refusing to apply the law as handed down by a higher court. Almost instantaneously, the liberal bar scribes have jumped to Mr. Kline's defense. "What" they ask, "is so terrible about a Justice expressing his opinion — particularly through a dissenting opinion?" Were that the real question, the answer would be clear. But that is not the question. Mr. Kline, in his dissent filed in the recent case of Morrow v. Hood Communications, Inc., acknowledges that he understands what the law is, but cannot, as a matter of conscience, follow the law. (The other two justices also disapproved of the law, but stated that although they agreed with the principles expressed by Mr. Kline in his dissent, they were nevertheless bound to follow the law; Mr. Kline could not bring himself to do this correct thing.) What is so flagrant about this opinion is that it does not merely try to change the law, it is instead an outright refusal to follow the law. The oath that he swore when he was appointed by Gov. Jerry Brown requires precisely the oppositethat he agree to uphold the law. Perhaps the justice's refusal to follow the law should come as no surprise, since his credentials are not legal as much as they are political. Unlike most appellate justices, Kline was appointed after serving in Brown's Cabinet for five and a half years as his judicial appointments secretary (alongside another famous cabinet officer, former Chief Justice Rose Bird, who was also appointed directly to the bench) and a scant two years as a Superior Court judge in San Francisco. The subject of the Commission inquiry is whether Justice Kline's action — voting against a motion which he expressly acknowledged that the law required be granted and stating that he would continue to refuse to grant such motions unless specifically ordered to do so by the Supreme Court — violated the Code of Judicial Ethics. (Canons 2A and 3B(2) require judges to respect and comply with the law and to be faithful to the law, which specifically, by definition, includes decisional law.) In California — indeed, in the United States — one who feels that a law needs to be changed is free to support an initiative to change the law, or to approach one's legislator or governor and seek to have the law amended or repealed. The power to change the law is vested in these processes, not in the judiciary. There is no room for a justice of an intermediate Court of Appeal to vote contrary to what he acknowledges to be the law, simply because he does not agree with it. To so act violates the Canons of Judicia1 Ethics and his sacred oath of office. As one writer recently stated: "It's good for judges to explain their disagreements with statutes and precedent, but it's wrong for them to disregard the law. No one forces them to become a judge; no one forces them to stay on the bench. Judges cannot be conscientious objectors." The United States Senate has recently spent a good deal of time and effort trying to explain why it will not vote for "activist" judges. The Senate's Democratic minority, while poohpoohing the majority, asks how one defines an "activist judge." Justice Kline has done the Senate a great favor by helping to define the term, as he takes his place next to former Chief Justice Rose Bird and others who would seek to judicially legislate us into an elitist society where a few like-minded folks in black robes can imperiously disregard the legislative process and tell voters and lawmakers what the law ought to be. Thanks, Mr. Kline, but I prefer to have the laws enacted by my duly elected legislators and governors who are accountable to (and removable by) their constituents or directly by the People of the State of California — certainly not by an activist judge who will not abide by the Canons of Judicial Ethics. The members of the Commission on Judicial Performance are to be applauded for performing their constitutionally mandated duties, for following their oaths, and for investigating and, if they find a violation, disciplining people like Mr. Kline, the politician in black robes. As for Mr. Kline, a word of advice. If you really want to follow your conscience, resign and run for real office, and stop hiding behind those robes. The bench has no place for activists. |
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HERE FOR LIST OF ARTICLES ON JUSTICE KLINE
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HERE FOR LIST OF "IN MY OPINION" COLUMNS
