Education for Judges- A Flu Shot

Yesterday I got a flu shot. No one made me get it. I did it on my own. Of course I could still get the flu. If so, I can take some comfort that at least I had tried to prevent it, and could rationalize that without the shot, my flu might have been more severe. But what if I did not get the flu shot and got the flu? I would have this demeaning discussion with myself. Despite my weakened condition I would be the object of derision and scorn heaped upon me by myself. It is not pleasant to call yourself an idiot. (For the benefit of the Daily Journal's refined readership I have omitted the adjectives that precede the word "idiot.") While in bed, shivering with chills, trying to swallow with a sore throat, I would have looked back months earlier and agreed that a mandatory flu shot would have avoided all of this.

But does that mean that mandatory flu shots are preferable? The subtle change in the hypo would not change my view because I had the benefit of hindsight. It is likely, though not a certainty, that I would have avoided the flu with a mandatory flu shot. I might not be so sanguine about a mandatory flu shot, however, when it is administered without the benefit of a glimpse into the future. The word "mandatory" does not sit well with most people. This includes judges. Now there's irony for you. Judges, like me for example, who make mandatory pronouncements daily that make people go to jail or pay money, or do something, or stop doing something, bristle when on the receiving end of "mandatory."

But wait a second. The doctor who is treating me for the flu attends mandatory continuing education programs. If my doctor did not take these programs or even voiced a strenuous objection to taking them, I would seek medical advice elsewhere. Most people profess to take the notion of education seriously, even high school drop outs. The insight usually occurs later in life. Education is mandatory for kids, and for an array of professionals including lawyers, doctors, accountants, veterinarians, mortgage and real estate brokers, to name a few.

So should mandatory education be required for judges? On October 20, the Judicial Council will consider recommended proposed Rules of Court that would require minimum education requirements for trial judges, 30 hours over three years. The devil may be in the details, but the rules can be modified and tweaked to satisfy a broad range of educational needs. But what of the concept itself? Judges on the trial and appellate level have voiced passionate concern over the issue, offering arguments for and against. The California Judges Association (CJA) through its Executive Board has expressed the firm belief that education is a "core duty of every bench officer," but is opposed to mandatory education.

California has rightfully earned a stellar reputation for having the most advanced and comprehensive judicial educational program in the world. Educational programs put on by CJA and the Center for Education and Research (CJER) draw record attendance. I have attended and taught at many of these programs and come away enlightened and renewed in my enthusiasm for my work.

With such high attendance and support for education from the vast majority of California judges, why are some so against mandatory as opposed to voluntary education? One primary concern is that mandatory education threatens judicial independence. But does it? The rules for mandatory education are promulgated by judges and will be implemented by judges. Judges have no say over what they can wear on the bench, but I hear no complaints that this undermines judicial independence.

Section 68110 of the Government Code requires judges at their own expense to procure a judicial robe which they shall wear when presiding over cases in open court. What's more, the Judicial Council prescribes the style of the robes. Rules of Court, rule 299 requires that the robe be black and extend in front and back from the collar and shoulders to below the knees, and have sleeves to the wrists. Moreover, the robe must conform to the style customarily worn in courts in the United States. Want to wear a short sleeved navy blue robe when the letters J-U-S-T-I-C-E on the front? A judge can do so at the dinner table, but not on the bench.

And what do we mean by judicial independence? In fact, we are dependent, and ironically, our independence depends upon it. We are dependent on the public we serve. I am not speaking about the unhealthy co-dependent relationships that psychologists speak of. Nor do I speak of the inappropriate dependence that would be reflected in judicial decisions that take into account the mood of the moment. This instead is a healthy relationship where judges take into account the public trust necessary to a free and independent judiciary.

True, candidates for judicial office undergo a rigorous examination concerning their suitability for this important office. The dedicated Commission on Judicial Nominees Evaluation (JNE) conducts an exhaustive investigation free from the influence of the appointing authority. But after a judge takes office the public can reasonably expect the judge to meet more than the minimum standards of competence and knowledge of legal principles. There is also the legitimate expectation that judges be cognizant of the diverse cultural mores of our communities and be aware of how the administration of justice is perceived by the public. Indeed, the commitment to mandatory education from the judiciary itself tells the public that judges take their awesome responsibility seriously.

It is true, that courts are constantly engaged in a process of education through the very act of judging. But educational programs give judges not only a comprehensive view of substantive law, but expose them to different methods of judging and help them become aware of how new technology and values in a rapidly changing world affect the administration of justice. Moreover, the excellence of the judicial programs now planned and taught by dedicated judges would in no way be diminished if the programs were mandatory. Forty-two states require judges to have mandatory education. Why not California?

Many judges in favor of mandatory education point out the "political downside" to rejecting such a proposal. We should not tell the voters that the rules that apply to other professions simply do not apply to judges. Should we appear as the stern Judge Angelo did to Isabella in Shakespeare’s Measure for Measure, Act 2, scene 2, “ . . . man, proud man, (and woman) Dressed in a little brief authority, Most ignorant of what he is most assured?” Should we hand this responsibility over to the legislature?

Some of my colleagues from the First Appellate District have endorsed judicial education for trial and appellate justices. They have remarked that “supplemental education programs administered by the judicial branch will affirm California’s commitment to judicial excellence and will enhance public confidence in the courts.”

The Judicial Council will vote on the proposal for mandatory education on October 20. We should avoid unpleasant consequences in the future. A mandatory flu shot can be a good thing.