Los Angeles Times
MICHAEL HILTZIK / GOLDEN STATE
Private Justice Can Be Yours if You're Rich
Michael Hiltzik
Golden State

March 16, 2006

You don't need me to tell you how grand it is to be rich in
California. You don't have to care about the condition of public
education, because your kids go to private school. You don't have to
worry about higher park fees, because you can lock up access to your
private beach and hire thugs to run off any riffraff who get near the
water. You don't have to do your own gardening, because there are
plenty of illegals around to trim your perennials.

And you don't have to subject yourself to litigating your private
disputes in open court, because you can buy yourself a judge to run
interference for you under cover of the state Constitution, no less.

If your private judge violates state judicial rules and bends the
public court system to your personal ends, what's the downside? Your
judge is outside the reach of the state's disciplinary system for
misbehaving jurists. If your case happens to involve matters of
manifest public importance and interest, too bad about the public.
After all, the system belongs to you.

Many states allow retired judges to fulfill limited judicial roles
as referees in evidentiary disputes or as fill-in judges to relieve
docket gridlock, for example. But California, apparently uniquely, is
much more liberal. Its Constitution allows attorneys and ex-judges to
conduct actual trials in the guise of temporary jurists. Once selected
by litigants, they're sworn in as Superior Court judges and endowed
with almost all the powers and authority of any active judge.

They then proceed to abuse their power. Documents and hearings in the
cases before them are supposed to be public, but often the papers
don't end up in public files, trial schedules are kept secret, and
even those that leak out are held in private offices behind layers of
building security. The sealing of a court document is an important
decision that involves a core principle of the public judicial system;
these judges do it all the time, secretly, simply by sticking
sensitive papers in their briefcases and dodging requests for access.

So justice ends up belonging, like a private preserve, to the rich and
powerful indeed, anyone who can pay a judge $400 to $500 an hour.
It's unsurprising that the public knows little about this system
because the judicial establishment isn't even sure how widespread it
is; court clerks don't keep a tally of how many cases are tried by
privately paid temporary judges.

But the number is obviously huge. One Northern California private
divorce judge told me she handles more than 20 cases at a time. Brad
Pitt and Jennifer Aniston hired a private judge to preside over their
divorce, as did Charlie Sheen and Denise Richards and investment
billionaire Ronald Burkle and his ex-wife, Janet. Michael Jackson
hired a private judge to hear his custody fight over his children with
ex-wife Debbie Rowe. What all had in common was the need to secure
formal, legally enforceable judgments and a distaste for the wear and
tear of going to court to get them.

Instead of reining in this system, the Legislature is preparing to
expand it. A bill to give temporary judges the authority to seal many
documents in divorce cases is currently moving through Sacramento,
despite evidence that temporary judges have overstepped their
nonexistent authority in the past.

The corrosive influence of this two-tier system is hardly a secret. In
1992, when a plan to expand the authority of temporary judges came
under consideration, Los Angeles Superior Court Judge Robert H.
O'Brien complained in a letter to state court administrators that "the
appearance of a dual system one for the wealthy, one for the poor
(or even not so wealthy)" was a "real evil." He dismissed the most
frequently heard justification that the public dockets were jammed
as a "feeble rationalization" for the creation of a moneymaking scheme
for retired trial judges. (Court documents indicate that retired
Superior Court Judge Stephen Lachs, whose current rate is $475 an
hour, collected $73,000 in just over a year on the Burkle matter
alone.)

One corrupting feature of the process is the immunity of privately
paid judges from disciplinary action. The state Commission on Judicial
Performance, which has the power to remove ordinary judges from the
bench, has no jurisdiction over temporary judges, even when they
misbehave. Even a county's presiding judge is powerless to force
temporary judges to comply with local procedural rules.

And their treatment of the rules can be extremely casual. Consider the
runaround there's no other word for it on which Judge Lachs has
led the public in the Michael Jackson custody case, over which he
presided until December, when Jackson accused him of bias and asked
him to step down. Jackson may be the focus of somewhat overheated
tabloid attention, but the judicial system's response to a serious
charge against someone so prominent Rowe has accused him of
abducting their two children to Bahrain is plainly a matter of
legitimate public concern.

Under Lachs, however, documents required by local court rules to be
filed with the Los Angeles court clerk never wound up in the files,
but remained in his possession. Hearings were scheduled but not
divulged. At a hearing in December, Lachs ejected a reporter for
TMZ.com, an entertainment news website, on grounds that sensitive
custody issues were to be discussed; in the event, the only topic
covered behind closed doors was the motion by Jackson's attorneys to
oust Lachs from the case. (Lachs never responded to my requests for
comment.)

Why should we care about this? Not only because the very idea of
two-tier justice should enrage every citizen, but also because as
conditions get better for the privileged, they become worse for
everyone else. As long as the wealthy and powerful can buy their own
civil justice, they won't care if the rest of the system goes to hell,
and the road to its collapse will become ever steeper.

Golden State appears every Monday and Thursday. You can reach Michael
Hiltzik at golden.state@latimes.com and view his weblog at
latimes.com/goldenstateblog.Untitled