Do private judges need more public scrutiny?

When Brad Pitt and Jennifer Aniston divorced last year, they hired a private judge to hear their case. So did Heather Locklear and Richie Sambora--after a battle of legal filings challenging the objectivity of two successive state-assigned judges. And Michael Jackson opted to do the same in a custody hearing.

The use of "rent-a-judges" has become popular in California and Texas, where it is favored by celebrities and other wealthy people because it speeds up their cases and--perhaps more important--keeps the details of their personal lives out of the public eye.

A private judge--typically a retired judge, sometimes a lawyer--usually hears cases in a conference room or lawyer's office. Some private judges have special facilities designed for the purpose. Both parties in a dispute must agree to use a private judge, agree on which judge to hire, and pay his or her fees, which can range from $200 to $500 an hour or more.

Lawmakers in several states--including California, Colorado, Florida, Indiana, Ohio, and Texas--have passed legislation allowing the use of private judges to resolve disputes. The practice is most popular in California, where there are reportedly around 500 working private judges; Ohio has only about 15. Some states limit the types of cases that private judges may hear. In Indiana, for example, they are limited to disputes involving contract law, tort law, or a combination of the two.

It is difficult to estimate the number of people using private judges; no state agency tracks hearings held by private judges. But there is no question that this alternative to the traditional court system is gaining popularity among those who can afford it.

Some lawyers welcome private judges as a solution to court overcrowding and a way for their clients to bypass clogged courtroom dockets. But others decry what they see as a skewed system where wealthy people can handpick their own jurists and where these judges operate outside the realm of public scrutiny and accountability.

"There are a lot of benefits" to using a private judge, said Tanya Stanish, a family law attorney in Chicago. "You can pick your judge, one who has experience in the specific area of law. Compared to relying on the public system, this is more direct and saves time. You are not at the whims of the judge's calendar."

Privacy is another important advantage, Stanish said, noting that there may be good reasons why people don't want their private disputes aired in a public courtoom, especially when children are involved. She said the cost might not be as high as it seems, since "lengthy trials in a courtroom can run up your lawyers' bills, too."

Catherine Conner, a lawyer who serves as a private judge in Santa Rosa, California, said the practice allows for a less formal, more comfortable proceeding.

"The ability to customize the process is a significant factor," she noted. "We can fashion it to suit what the client wants. I have seen some very unusual procedures. For example, one client gave us a list of witnesses and said they wanted us to call them and get the information we needed. They supplied their own form of information-gathering. Or in some cases, the parties don't want certain rules of evidence to apply. This works really well, because the process is much smoother when they have more control and feel less anxious."

But critics say private judging can cream an overly informal atmosphere among judges and lawyers who frequently work together.

"I've had some experiences where there was a very clubby, casual atmosphere that surprised me," said Susan Seager, a media lawyer in Los Angeles. "In one case, the so-called neutral, a woman, actually walked up to the two opposing lawyers and kissed them on the cheek. I find that troubling."

Private judges differ from mediators or arbitrators in several important ways. For one thing, they are considered part of the state's judicial system, not separate from it. They are sworn in as temporary judges, and their rulings can be appealed. Perhaps most important, the proceedings and decisions must be available to the public.

Seager said that rules about public access may be on the books, but they're rarely followed or enforced in practice.

"Yes, the public has the right to attend hearings, but it really isn't like the public system, where you can go to the courthouse and look at the docket," she said. "Lack of access and secrecy are serious concerns, because public oversight ensures that the law is being applied fairly. People want to know: Are our courts being fair? With [this practice], you have judges who are not accountable to the voters or to the state judicial council."

Early this year, Seager represented the celebrity-news Web site TMZ.com in a complaint against Jackson s judge. Reporters from the site had tried to attend Jackson's custody hearing and repeatedly asked the judge to see documents from the case. According to a letter Seager wrote to the supervising judge of the Los Angeles County Superior Court, the judge in the Jackson case had "repeatedly denied press access to presumptively open proceedings and court records. Despite repeated requests for access since October 2004 and repeated promises from the judge that copies of court records would be provided, [the judge] has failed to provide a single copy of a court record to our clients, and excluded a reporter from a December 19, 2005, hearing."

The letter also says the judge "has not listed any of his proceedings on the Los Angeles County Superior Court public docket" and that the TMZ.com reporters only found out about the December hearing, which was held in a court reporter's office in Palm Desert, by constantly calling the judge's office. The letter asks the court to adopt a new rule requiring that all private-judge proceedings "and all court records filed with temporary judges be filed on the Los Angeles County Superior Court public docket." At press time, the proposal was being considered by the state legislature.

Seager also intervened on behalf of several news organizations in the divorce proceedings of supermarket magnate Ron Burkle. Burkle--who also used a private judge--sought to have all his financial information redacted from the court records under a state law that allows a judge to conceal information from a record if any party in a divorce requests it. The statute also extended that right to private judges.

The news organizations countered that the law violated First Amendment rights. A trial court agreed that the law was unconstitutional, and an appeals court upheld the ruling. The state supreme court declined to rule on the case. (Burkle v. Burkle, 37 Cal. Rptr. 3d 805 (Ct. App. 2006).)

"These hearings create an appearance that the wealthy get special treatment, and this affects the public's perception of the fairness of the justice system," Seager said. Also, she noted, the public learns much of what it knows about the law by watching celebrity trials.

In September, defense lawyer Linda Rodriguez-Taseff told CNN's legal news analyst Nancy Grace that the use of private judges was "nothing but limousine justice."

"It is a disaster in the making," she said. "It is creating two systems of justice, one for the rich and one for the rest of us."

Private judging, public resources

Robert Zimmerman, a trial lawyer in Cleveland, said he does not oppose private judging in principle but is concerned that some private judges are expanding their authority beyond the scope of the law.

In July, Zimmerman represented Nancy Margaret Russo, a judge in the Cuyahoga County Court of Common Pleas, and other Ohio judges in a landmark case before the state supreme court. Russo charged that private judges were conducting jury trials in violation of the state law that authorized the use of private judges and asked the supreme court to prohibit Cuyahoga County's administrative judge from referring jury trials to private judges.

"The law is the law," said Zimmerman. "The statute does not authorize jury trials [by private judges], but judges were convening them anyway."

The plaintiffs also alleged that private judges were improperly using county courtroom facilities, overstressing the already crowded system and creating a shortage of jurors, bailiffs, and court reporters.

The Ohio Academy of Trial Lawyers (OATL) and the Ohio Association of Civil Trial Attorneys filed amicus briefs supporting the referral of jurors and other resources to private judges. They argued that the practice streamlined the judicial process and that the Ohio constitution guarantees the right to trial by jury. Rhonda Gail Davis, president of the OATL said in a statement that "other than the limited issues addressed in the [Ohio] case, the academy has not taken a formal position on the use of private judges."

The Ohio Supreme Court found that, as with other forms of alternative dispute resolution, "parties entering into an agreement to refer a case or issues to a private judge ... manifestly waive their right to a jury trial." In July, the court ruled that private judges could no longer convene juries and that parties who use county resources for hearings before private judges must reimburse the county. (State ex rel. Russo v. McDonnell, 852 N.E.2d 145 (Ohio 2006).)

"When the [Ohio law] was passed 20 years ago, the intent was clear," Zimmerman said. "Private judging can be useful; you can clear the docket. But it's important for the law to apply as it is written, so the person who uses it must give up their right to a jury trial."

Zimmerman said the Ohio ruling restored a level playing field: "We were moving toward a two-tiered system of justice, where people could pay to expedite their proceedings. That doesn't seem fair."

Seager said it would be better to allow private judges to use state resources because it would keep the proceedings in public view. In Colorado, private judges may use public courtrooms and draw from the state jury pool, but the parties who hire them must pay all associated costs.

She said the term "private judge" misleads the public about the judges' status. "They are actually hybrid public-private judges," she said. "Bear in mind that they have to be sworn in as temporary judges. They are legally within the system, but physically outside of it. They are not private. They are the public's judges, paid for by private parties."

The practice, she said, "sets up a whole separate justice system outside the public eye. I do not see how that is in the interest of justice."