SACRAMENTO — A review of judicial behavior in regards to the habits of dissent voting between a pro tempore and a permanent judge reveals a slight deviation, according to a lawyer and legal analyst.

Kirk Jenkins, an attorney and partner at Chicago’s Sedgwick Law, recently looked at what he referred to as the possibility of “dissent aversion” between California’s pro tempore judges elevated to a higher court to temporarily cover a vacancy and permanent judges to that court.

Jenkins, who spoke with the Northern California Record, looked at eight years of votes cast by pro temp and permanent judges covering civil cases.

“A great deal of the academic literature about appellate decision making tries to measure group effects — the impact on voting of the ideology or background of the other justices someone is sitting with,” he said.

According to Jenkins, “dissent aversion” is the habit of not voting against the majority even though such an act may run contrary to the principles, legal ideals and conclusions of the judge. The reason for this may have something to do with what could be phrased “familiarity breeds conformity.”

“Various reasons [for dissent aversion] have been suggested — most prominently, that publishing dissents contributes to tension with one's colleagues,” Jenkins said.

Having served for long periods of time together and developing close bonds of camaraderie, it is theorized that judges may look more to not rocking the boat than to standing on principle. Following that line of argument, Jenkins conjectured that, if true, pro tempore judges would display a greater degree of disparity with the majority.

Jenkins conducted his study because he felt that “looking at pro tems seem[ed] like an interesting opportunity to contrast a justice joining the court for only one case to the patterns among the permanent justices.”

His findings revealed that pro tempore judges voted, on average, 90 percent of the time with the majority, while the permanent judges sided with the majority 89.44 percent of the time — a slight deviation, but contrary to the conventional wisdom propounded previously.

Dissent aversion has manifested itself in different forms in the past within California, including the behavior of former state Chief Justice Rose Bird, who presided on the high court from 1977 to 1987.

James Brent of San Jose State University published a paper in 2006 discussing judicial manipulation as allegedly practiced by Bird and her subsequent replacements.

Citing the state’s “largely discretionary docket” involving distinct ideological and policy issues that often produced “high levels of dissent,” Brent wrote that “a chief could be tempted to use this power to achieve policy goals.”

The temptation of this power to appoint judges favorable to the will of the chief justice (i.e. stacking the court) and thus shape policy was reportedly too much for Bird to ignore, Brent's paper stated. In one such case, Assembly v. Deukmejian from 1980, the state's high court “upheld a Democratic legislative redistricting plan.” Bird was joined in the 4-3 majority vote by a pro tempore justice. During her time on the high court, Bird broke from the normal practice of picking appellate judges as pro tempore justices by bringing up trial-court judges to those positions. That led to charges of manipulation, the paper said.

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