Removal of Judge Who Has Retired Is Pursued : Judiciary: The State Supreme Court is asked to formally fire a Los Angeles jurist who has already retired under fire. The request is met by hostility from several justices.

By PHILIP HAGER

Jan. 10, 1990 12 AM PT

TIMES STAFF WRITER

In a plea that met with marked hostility from some justices, the state Supreme Court was asked Tuesday to formally remove a Los Angeles judge from office for misconduct, even though he retired under fire more than a year ago.

A lawyer for the state Judicial Performance Commission told the court it should rule officially on charges against former Municipal Judge David M. Kennick to help deter wrongdoing by other jurists and strengthen public confidence in the judiciary.

Unless there is a ruling to formally remove Kennick, “there is no public accountability,” said state Deputy Atty. Gen. Susan D. Martynec. “This was a judge who attempted to use his office for personal gain and who did use it to benefit his friends.”

But Martynec encountered a flurry of skeptical questions from some agitated court members who contended that because Kennick has left the bench, the issue is moot and that pursuing the case is a waste of the court’s time.

“I see no socially redeeming value in having this court tax its limited resources to accomplish something that’s already been accomplished,” said Justice Allen E. Broussard. Similarly, Justice Marcus M. Kaufman observed that a ruling would require many more hours of work by the court and its staff. He demanded to know what was at stake, “aside from the commission’s ego?”

The judicial discipline case has been entangled for months in a novel procedural dispute involving the justices, the commission and lawyers for the accused judge.

The judicial watchdog agency first urged Kennick’s removal by the court in January, 1988, for a broad range of misconduct. Such a removal from office--the most serious disciplinary penalty that may be imposed on a judge--has been sought by the commission only a dozen times in its 30-year history.

Among other things, the commission charged that Kennick improperly suggested to a highway patrolman that he “lose the paper work” on the judge’s arrest for drunk driving; openly demeaned Asians, women and alcoholics in court; and gave friends who were attorneys a disproportionate number of appointments to represent indigents in court.

Kennick retired in July, 1988, and his lawyers then asked the court to dismiss the commission’s case, contending that his retirement attained the same result as removal and that there was no need for further proceedings.

The court then dismissed the case--but hastily reinstated it when the commission vigorously objected. The commission argued that the judicial disciplinary process would be thwarted if accused judges could evade a final ruling on the charges by simply leaving office. The agency pointed out that unlike judges who retire, judges who are removed are barred from judicial office and can be suspended from practicing law.

In a series of letters to the court, Kennick’s lawyers continued to urge the court to drop the matter, saying that Kennick voluntarily agreed not to seek office or practice law. In a final gesture of what they viewed as the futility of the matter, the judge’s attorneys waived their right to appear for argument before the justices.

At Tuesday’s hearing in Los Angeles, Martynec accused Kennick of asking the high court to “lose the paper work” in his disciplinary case, just as he had asked the highway patrolman to “lose the paper work” in his drunk driving case, in which he later pleaded no contest.

Without action by the justices, Kennick’s agreement not to seek office or practice law will be without legal “force and effect,” the state lawyer said. California should join with 16 other states that have ruled that a judge’s retirement does not bar further disciplinary proceedings, she said.

But Broussard, Kaufman and Justice Edward A. Panelli all expressed strong opposition to more proceedings in the case in view of Kennick’s retirement. “It doesn’t make sense,” said Panelli.

Justice Stanley Mosk, in an apparent attempt to bolster the commission’s case, asked Martynec whether a definitive ruling from the court in Kennick’s case would provide “a lesson” for others on the bench. “It would certainly provide them with guidance,” she responded.