Rent-a-judge: a fast way to 'day in court'
They call it rent-a-judge.
If you've got the money and you're in a hurry, you can bypass California's clogged court system and hire your own judge - in civil cases.
The program, currently in limited use, has sparked considerable interest and heated debate in the nation's legal circles. It is being tried as an alternative to the case-clogged public court system under an obscure 1872 law that went virtually unused until now.
As its nickname implies, the procedure allows opposing sides in civil suits to hire a retired judge - for as much as $1,000 a day - to settle a dispute that might otherwise take as long as five years to come to trial.
Proponents praise it as a fair, efficient alternative to delay-ridden courts. In the case of Los Angeles Superior Court, for example, there is a backlog of 46 ,000 suits and a waiting period of as long as four years before a case may come to trial.
Although the practice is not widespread - it has been estimated that only 30 to 50 cases a year are referred to private judges in the L.A. Superior Court system - supporters also see rent-a-judge as a working model for court reform, what retired California state Court of Appeal Judge Robert Thompson calls ''a laboratory out of which procedural change is likely to come.''
Critics, however, don't see it that way. In fact, private judging has been called ''legal apartheid'' - a procedure which could promote two systems of justice, one for wealthy and one for the average citizen. Currently, rent-a-judge system is being investigated by the California state bar and the state's policymaking Judicial Council. The council is chaired by one of the procedure's most prominent critics, Rose Bird, chief justice of the California Supreme Court. In addition, rent-a-judge has been criticized in the Harvard Law Review and also is being scrutinized by the American Bar Association (ABA).
''In the US, we should not have a dual system of justice, one deteriorating and the other deluxe,'' contends Robert Gnaizda, a partner in Public Advocates Inc., a San Francisco-based public interest law firm that has been particularly vocal in its opposition to private judges.
''Access to justice predicated on wealth,'' he continues, ''is a dual system.''
Basically, private judging involves the consent of both parties, who must receive court approval to hire their own judge.
Unlike trials in the public court system, cases heard by ''rented'' judges may be held in private. Also unlike the public courts, litigants may search out a judge with an expertise in the area of law their case involves.
Equally significant, say observers, is the fact that unlike a decision made in arbitration, where a third party's ruling generally is final and cannot be appealed, a private judge's decision may be taken directly to an appellate court. In effect, say critics, this allows wealthy litigants to avoid the delay in civil courts and then ''crowd into line'' at the appellate level.
''This idea of having the best of both worlds because you have money . . . is profoundly disturbing,'' says Ralph Gampell, director of the Administrative Office of the Courts. ''It puts the justice system in a most unfavorable light.''
Critics also fret over the number of unanswered questions raised by the use of private judges. Although the ABA's Action Commission to Reduce Court Costs and Delay says that Nebraska, New York, Oklahoma, and South Carolina have statutes virtually identical to California's 1872 law, California is the only state in the nation to have tried private judging. Even here, however, few if any statistics are available on the scope of its practice.
The questions as yet unanswered include: How can private judges be disciplined? Apparently, say observers, they can't, because the state's Commission on Judicial Performance has authority only over judges sitting in the official court system. In addition, critics are troubled by the secrecy with which a private judge may conduct a trial.
Proponents of private judging, however, say such criticism is unfair. As for the secrecy question, most cases are so esoteric that ''you couldn't pay a reporter to cover them,'' says former judge Thompson, now a law professor at the University of Southern California. He has acted as a private judge ''in not over 10 cases'' in the past two years.
Supporters also argue that by taking a complex civil suit out of the public court system, other cases will come to trial sooner.
''A big case could take 10 percent of the court for 10 percent of the year,'' says Hillel Chodos, a Los Angeles attorney, who, along with Seth Hufstedler, is credited with being the first to make use of private judging, in a 1976 case. ''Private judging requires 2 percent of the cost and 2 percent of the time.''
''The basic point,'' he says, ''is that it's a way to decomplicate the legal process.''