Gavel for Hire: The Underground World of Private Judges

California’s underfunded and overwhelmed public courts have been a major issue for the state’s ability to administer justice, particularly for family law matters. According to the Judicial Council of California’s 2018 Court Statistics Report, there were 375,529 family law cases filed in the Fiscal Year of 2016-17. The report also indicated a judge-to-case-filing ratio of roughly 1 to 3,000.

Family law courts have notoriously been among the busiest court departments in California. Symptoms of the backlog can be gleaned from court rules and judicial policies that emphasize private settlement through alternative dispute resolution programs and the implementation. Significantly, California’s judge pro tempore program was instituted to combat packed judicial dockets and court backlog.

What Is a Judge Pro Tem?

The judge pro tempore program was a program that gained traction in the 1980s as method of alternative dispute resolution where the parties to a legal action agree to choose a “judge pro tempore” (temporary judge) to preside over their case for a fee. For the most part, a judge pro tempore was a retired judge who returned to public service as a private citizen.

However, a judge pro tempore was not restricted to retired judges. Pursuant to article VI, section 21, of the California Constitution, the California Rules of Court allow qualified members of the legal community – including attorneys who still practiced law –to assume judicial duties for cases filed in court as temporary judges. It wasn’t long until a family law attorney spent the morning advocating on behalf of a client in a divorce case and then presided over a different child custody case as a temporary later that day.

Litigants could take advantage of the temporary judge program and bypass the glacial speeds of the Superior Court calendaring system if they (1) agreed with the opposing party to use a private judge, and (2) could afford to pay the private judge’s fees.

This arrangement seemed like a win-win scenario for all interested parties: retired judges and private attorneys could earn extra money as a temporary judge, California courts had extra hands to help with the their stacked dockets, and litigants had a fast-pass ticket to resolving their claims.

Drawbacks of Temporary Judges

One of the significant downsides to the private judging system is that it stratifies access to justice, creating a “pay-to-play” element to the judicial system. To illustrate this point, virtually all Hollywood celebrities hire a private judge to handle their divorce proceedings. However, for the majority of the cases in the public court system, most litigants don’t have the financial resources to benefit from the private justice system effectively.

Another drawback of the private judging system is its potential for bringing out collusive behavior. Jill Hers, a family law attorney, addressed this risk in her 2009 article feature in Family Law News, “Ethical Considerations in Appointing our Colleges as Private Judges.” Hersh warned the family law community about the potential conflict of interest arising from a situation where an attorney selects another practicing attorney as a private judge:

“Many of us refer cases to each other and, from time to time, send a bottle of wine or some equivalent gift as a token of our appreciation…many of us derive business, ergo income, from the referrals by our colleagues…There are irreconcilable scenarios and, under the best of circumstances, invite significant questions by the client in each case. For example, the client in the litigation may be concerned that my decisions in her case are r were impacted by my need to curry favor from the judge in the other case.”

Call Hanson, Gorian, Bradford & Hanich at (951) 506-6654

California divorce cases can be expensive. When the parties are not open to resolving their conflicts through compromise and mutual understanding, divorce litigation needlessly can drag out for years. However, a skilled family law attorney can make sure opportunities for settlement, compromise, and negotiation are not overlooked. At Hanson, Gorian, Bradford & Hanich, you can rely on us to provide you with sound, comprehensive legal advice to help ensure you obtain a fair result for your case. We are prepared to zealously advocate for your rights when compromise is not a realistic option. We have offices conveniently located in Temecula and Riverside County.

Contact our office online to schedule a free case evaluation with a member of our legal team about your family law or divorce issues today.


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