Why Kline Should Resign

The debate over whether Superior Court Judge Ronald C. Kline may withdraw his name from the ballot has obscured a more basic issue. When should a judge charged with a crime resign? Before we answer, some background on judicial selection may be helpful.

Today, about half the states appoint their judges, and about half elect them. Two-thirds use commission plans to aid the governor in choosing judges. In California, trial court judges initially are appointed by the governor when seats become available during the course of an incumbent judge’s term. The other route to the bench is direct election, when an incumbent declines to run again, or less frequently, is defeated. Judges stand for reelection for six-year terms. If they have no opponents, as is often the case for incumbents, their names do not even appear on the ballot.

The governor makes the appointment after review of nominees by a commission of the State Bar of California. The commission sends out questionnaires, conducts confidential interviews with people who know the applicants professionally, and interviews the applicants.

With one exception, only the governor receives their evaluation. The exception is that if the governor appoints a trial judge found not qualified, the state bar, after notifying the prospective judge of its intentions, may disclose publicly that it found the applicant not qualified.

At the same time, county bar associations conduct independent investigations of the applicants and report their results confidentially to the governor’s appointments secretary. The procedures vary by county. In Orange County, the bar historically has provided not only a rating but also a written summary of the evaluation made by a 30-person committee after review of the report of a three-person subcommittee.

There is a third screening committee, which is local, and may be the most important. The governor’s office often appoints one or more distinguished lawyers and judges to act as gatekeepers. This can be a significant or determinative stage in the process.

At the end of the process is an interview with the governor’s appointments secretary, currently Burt Pines, the former Los Angeles city attorney.

By and large the system works. Judges are selected on merit. Partisanship rarely plays a role. The better lawyers usually are picked. In recent years, in Orange County in particular, some very distinguished lawyers have given up lucrative private practices in order to serve the public on the bench.

Usually unopposed, incumbent judges are shoo-ins. Usually they deserve to be. That was not the case in the past primary election with Kline. Facing charges of child molestation and possession of child pornography, he has been confined to his home under arrest, pending trial while suspended with pay.

After several candidates mounted an unprecedented write-in campaign, Kline was forced into a runoff, which he is certain to lose. After the election the judge petitioned to have a court remove his name from the ballot, which has generated controversy over whether the law allows removal in these circumstances. The motion is pending.

Like every citizen, Kline is presumed innocent. That he holds public office does not lessen the presumption. But being indicted for pedophilia-related charges has destroyed public trust in Kline’s ability to be fair and impartial.

If Kline were acquitted, he could return to the courthouse, at least theoretically, but not to the bench. As a practical matter, the presiding judge could not, and would not, assign him to juvenile, family law, criminal law or probate panels, because his impartiality would be presumed to have been impaired. If he were assigned to a civil panel, lawyers would exercise peremptory challenges to bar him from hearing their cases.

Even if acquitted, Kline might face impeachment by the Assembly and trial by the Senate for the charge of using his courthouse computer to download child pornography. As a practical matter, Kline would remain at home, drawing his $11,000-per-month salary, just as he is today.

While Kline negotiates with prosecutors and awaits trial, the public is suffering. The Orange County Superior Court bench is short a judge. The work of the judiciary in trying cases is delayed.

Ordinarily, the presumption of innocence is so strong that Kline should not be asked to leave office before standing trial. But the primary election changed that. The write-in candidates managed to force him into a runoff, a rare occurrence considering that there was nobody else listed on the ballot, and that voters had to know to request a list of qualified write-in candidates. The public sent a message that irrespective of what happens to Kline in criminal court, it wants him off the bench.

No doubt Kline first put on his robes in part out of a sense of public service. If he still wishes to serve the public, he should respect its wishes and resign. Even though the write-in process was an unexpected triumph of democracy, in fact it was clumsy and at best a stopgap measure. Voters didn’t get adequate information.

If the governor is given a chance to select Kline’s successor, he will be using a process that is based on selection by merit, and is likely to result in a better judge than would result from the write-in route. The governor can start the lengthy process anew, and this is likely to produce a better field to select from than the awkward write-in campaign produced.

All this will help the Orange County Superior Court get on with the public’s business, with the best possible replacement. Judge Kline should bow out with grace now, even if it comes with no reward but the satisfaction of doing the right thing for the right reason.