Appellate Justice J. Anthony Kline, one of Gov. Jerry Brown’s oldest friends, has quietly stepped away from handling a case involving Brown’s communications with the Public Utilities Commission.
Last month, Kline had abruptly, without a hearing, blocked a Superior Court judge’s declaration that the communications, reportedly 65 emails, were subject to the state’s open records laws and could be reviewed and possibly released.
That action drew fire from the attorneys who were seeking the emails, principally former San Diego City Attorney Mike Aguirre, as they contest the PUC’s decree that ratepayers should bear 70 percent of the costs of shutting down the San Onofre Nuclear Generating Station.
The San Onofre settlement was negotiated privately by Michael Peevey, the PUC’s former president, with officials of Southern California Edison, the plant’s majority owner, most infamously during a meeting in a hotel in Warsaw, Poland.
Aguirre wants to know whether Brown was involved in the settlement and demanded his communications with the PUC, which is supposed to be an independent agency. He asked San Francisco Superior Court Judge Ernest Goldsmith to review the emails under the California Public Records Act and Goldsmith agreed, rejecting a PUC assertion that the emails are part of a rate case and therefore can only he considered by an appellate court.
“Withholding recordings involving allegedly secret ex parte deals between CPUC officials and utility companies in violation of the Public Records Act is not a regulatory function of the CPUC,” Goldsmith declared. The PUC insists that the communications in question have nothing to do with San Onofre and were not sent to or received from the governor personally.
Almost immediately, the PUC appealed Goldsmith’s ruling, and Kline, a presiding justice of the state District Court of Appeal in San Francisco, issued a stay of Goldsmith’s decision without a hearing.
Aguirre and his colleagues then demanded that Kline recuse himself from hearing the case, citing the justice’s long friendship with Brown.
The two were classmates at Yale Law School and later roommates when both were judicial clerks. He served as Brown’s legal adviser during his first governorship before Brown appointed him as a Superior Court judge in San Francisco and later an appellate justice.
“A reasonable doubt as to the judge’s ability to be impartial is acutely present here in light of the fact that the judge issued a stay and agreed to hear the case without allowing the real party in interest to oppose the stay,” Aguirre said in his recusal demand.
On March 3, Kline stepped away in a one-sentence order entered into the case record: “Presiding Justice Kline is hereby recused from adjudicating this matter.”
Whether Kline recused himself voluntarily or other legal authorities forced his action is unknown.
“This is another example of the judicial system acting with integrity,” Aguirre said Wednesday.
With Kline’s recusal, other appellate justices will now consider whether Goldsmith can review the emails for their suitability for release under the open records law.
Editor’s Note: This post was updated at 12:45 p.m. March 9 to add the PUC’s description of the emails.