The Primer on Electing Judges in California

What to do about voting for or against judges is a thing this year. I’m hoping this column will answer some of the questions readers have.

The attention paid to Brett Kavanaugh’s Supreme Court confirmation hearing has made a lot of people take notice of the judicial contests appearing on their ballots. At least that is what I assume is going on, having researched and/or produced a half-dozen or so voter guides since 2012.

San Diegans who have heard, read, or seen campaign materials about many candidates and propositions open up the ballot and are confounded by seeing 16 judicial contests for people they know nothing about. (There’s a seventeenth contest, and we’ll get to it further down in the story.)

Who are these people listed for California’s Court of Appeals and Supreme Court and why are we being asked to vote on them?

A quick history lesson…

In 1934 California voters passed Proposition 3, resulting in the system currently in use when it comes to selecting judges for the appellate and supreme courts.

Proposition 3 was advanced, along with other ballot measures, as part of a wave of reforms to the state’s criminal justice system by citizens increasing concerned about the hyper-partisan nature of judicial contests back in those days.. As has been true with other citizen-initiated measures in the past, the state legislature jumped in with some of its own ideas once this one made the ballot.

Credit: Karen Neoh / flickr

Proposition 14, which would have instituted the same system for Superior Court judges, didn’t pass, a result some historians blame on its ballot placement–right after a rejected prohibition-related constitutional amendment.

So what California has is a hybrid system. The governor is the power player in both the higher and lower courts. What’s different are the ways the checks and balances operate.

For higher court seats, namely the Court of Appeal and Supreme Court, the governor makes nominations, a state bar commission reviews them, and a three-member panel votes to confirm them.

A 2017 study from the Center on the Legal Profession at Stanford Law School, in partnership with the Brennan Center, took a long, hard at this process.

As a result, California’s governor has far more influence than any other actor in selecting judges. Most of the selection process takes place behind closed doors, guided by aides and advisors. All of this discretion isn’t always a bad thing; for instance, it helped allow Gov. Jerry Brown to embark on an ambitious project to place more women and people of color on the appellate bench during his first term in the late 1970s and early ‘80s. The commissions might also affect who a governor chooses to nominate in the first place, since the governor knows his or her choices will receive some official scrutiny and that he or she might incur political costs for selecting a candidate without strong qualifications or who is far outside the mainstream.

At the end of their twelve-year terms and at the first election following their appointment, judges stand for retention elections to keep their seats, namely a yes/no choice for voters. With three exceptions, California voters have always answered “yes” in voting for these positions.

In 1986, Republicans–led by Gov. Deukmejian–made the state supreme court’s anti-death penalty stances the centerpiece of their campaigns. It was a classic “liberals are soft on crime” effort typical of those used by conservatives during this era.

TV and newspaper ads touted vicious criminals “freed” by the Supreme Court, when in fact, it was only the sentencing at issue. The bad guys remained behind bars, but the public was led to believe otherwise.

Four conservative groups raised more than $5.6 million via direct mail to unseat Supreme Chief Justice Rose Bird (the first woman justice), Cruz Reynoso (the first Latino justice) and former labor lawyer Joseph Grodin.

The death penalty was little more than a facade for the successful campaign against the three – the actual purpose of was to put a conservative majority on the California Supreme Court. Agri-business and big banking concerns utilized the strategy and tactics of the “taxpayer revolt” to flip a court whose rulings all-too-often opposed their interests.

Two Supreme Court and fourteen Court of Appeals Justices are up for a yes/no vote this year. Three of the six sitting Supremes were nominated by Republican Governors (Chief Justice Tani Cantil-Sakauye and Carol Corrigan/Schwarzenegger and Ming Chin/ Pete Wilson). Gov. Brown appointed Mariano-Florentino Cuéllar, Leondra Kruger, and Goodwin Liu.

Justices Kruger and Corrigan appear on the general election ballot for 2018.

The seventh seat on the Supreme Court (which would have been on this year’s ballot)is vacant, and here’s where politics come into play. Gov. Brown is holding off on nominating somebody for that position until December, ensuring a new appointee wouldn’t have to stand for a retention election for 12 years.

Some folks have written in saying we should vote for or against retention of upper court justices based on which Governor was responsible for the nomination.

Others say we should vote No on Supreme Court Justice Carol Corrigan because she voted in favor of a rehearing of the challenge against Proposition 8’s ban on same-sex marriages.

It’s really not that simple, as Scott Lay explains:

…the overwhelming majority of people voting yes or no on Justice Corrigan’s retention have no idea what a suspect class is under the Equal Protection Clause, let alone the gradiation of scrutiny used to evaluate such class. Further, try explaining the difference between the Equal Protection Clause of the Fourteenth Amendment in the United States Constitution from the inalienable rights clause of the California Constitution and equal protection guarantee therein. If you reach a conclusion on the state’s right, then you enter the domain of federal obligations for other states to recognizes rights and privileges granted by this state.

Same-sex marriage is a passionate, personal issue. There aren’t many “don’t knows” in the polling, and voters in California overwhelming support it since the sky hasn’t fallen.

That said, it was a complicated legal path that needed the strong statement under the United States Constitutiton handed down by the Supreme Court of the United States in Obergefell and Windsor.

I’m just not sure any effort to campaign against a higher court justice is wise at this point, given how many other critical issues are on the ballot. Obergefell and Windsor will likely be re-heard by the Trump court at some point, and it seems prudent to vote in such a manner that they’re tied up with other, more pressing cases.

I know there are folks who will disagree with this point of view, but for me, this sort of aspiration falls in line with those folks who take to Facebook to call for a “general strike” in response to egregious actions by the Trump administration.

For those who’ve been asking, the Lake San Marcos Democratic Club has made a list of judges, based partly on the political party of the Governor who nominated them.

Associate Justices of the Supreme Court

Carol Corrigan – Definitely NO. Does not care for LGBTQ and is a Trump lover.
Leondra Kruger – YES

Associate Justices of the Court of Appeal

Joan Irion – YES
Judith Haller – NO
Richard Huffman – NO
Patricia Benke – NO
Cynthia Aaron – YES
William Dato – YES
Patricia Guerrero – YES
Douglas Miller – NO
Richard Fields – YES
Art McKinster – NO
Marsha Slough – YES
David Thompson – NO
Raymond Ikola – NO
Thomas Goethals – YES

The other part of judicial elections in California concerns those serving in the Superior Courts.

State trial court judges are also appointed by the governor. The positions themselves (not the person serving in them) have six-year terms at the end of which there are non-partisan elections.

What this has meant in practice is that retiring judges have waited until after an election of a governor they politically like to step down. Thus, their replacement has a better chance to benefit from incumbency five or six years down the road. The “political” part of this equation is fading as California becomes more of a one-party state at the executive level; the incumbency part, however, remains.

With rare exceptions, incumbent judges run unopposed in the primary. In fact, unless there is announced opposition, their names don’t even appear on the ballot.

California’s judiciary is protective of its own, with a “wall” of black robes protecting the reigning officeholders from all but the most egregious of offenses.

On occasion, mistakes get made. In 2012, prosecutor Garland Peed was the inside choice to occupy one the rarely–usually caused by illness or death– occurring open seats on San Diego’s bench.

Gary Kreep, an attorney with a history of outlier political advocacy (he was a birther, among other things) also declared for the post.

“Everybody knew” Peed would be voted in by the few voters who bother to fill in judicial ballot bubbles.

A mysterious (and illegal) robocall campaign from a political-action committee (PAC) called “Taxpayers for Safer Neighborhoods in the days leading up the election warned voters (by conflating two cases with similarly names defendants) about the prosecutor’s willingness to cut deals with really. bad. criminals.

It’s illegal for judicial candidates to mislead the public about their opponents under California’s ethics rules for judges, so the big question was “who paid for those calls?”

Here’s a snip from Dave Maass, whose reporting at San Diego City Beat put this story in the public spotlight:

The PAC, we found, is tied to James Lacy, who’s a close political ally of Kreep’s; Lacy chairs the Western Conservative Political Action Conference, while Kreep serves as vice chair. What we didn’t know is who paid for the robo-calls.

And guess what! Even though the group’s campaign disclosure for that period were made public yesterday, we still don’t know…. because no one’s paid for them yet.

The PAC’s disclosure shows that Landslide Communications, a political-marketing firm run by Lacy, made the calls-one attacking Peed, worth $540, that went out three days before the election and one promoting Kreep, worth $440, that went out one day before the election. That’s a total of $980, conveniently $20 short of the spending level that would require expedited reporting.

Once elected, Kreep’s went on to garner a “severe public censure” from the Commission on Judicial Performance.

The commission leveled 29 charges of misconduct against Kreep, most of which related to his judicial campaign and his first year on the bench in the downtown San Diego Superior Court. Lawyers for the commission had argued he should be removed from office because the misconduct was so serious.

Despite the large number of violations the commissioners did not kick him off the bench, because it said in its decision that most of the violations occurred during his 2012 campaign for the seat and in his first year or so as a judge.

Now that Judge Kreep is up for re-election, the local legal establishment has thrown everything but the kitchen sink into making sure this prior oversight on their part goes away.

Deputy District Attorney Matt Brower has the backing of twenty current or retired judges, fourteen police officers groups, a gaggle of Democratic officeholders, and even the San Diego Free Press. (Does this mean we’re establishment? Nope. Kreep’s that bad.)

Judge Kreep does have the backing of the San Diego County Republican Party, which should show readers just how low the bar is these days.

Judge Kreep is the exception to the rule. What Matt Gonzalez, chief attorney of the San Francisco Public Defender’s Office calls the thin black line exists to protect the judiciary from outside ‘interference.’

Four public defenders in San Francisco opposed sitting judges in the primary and the Democratic party establishment rushed to defend the incumbents, who won handily on June 6th.

In 2014, Carla Keehn ran against incumbent judge Lisa Schall in San Diego. Billboards –authorized and approved by Clear Channel seven weeks in advance– calling attention to the incumbent judge’s plea bargain deal for a DUI were taken down quickly.

From KPBS:

“It appears that my ability to make political speeches is seriously being interfered with,” said Keehn. “I think it’s now apparent about what happens to people who try to stand up and hold judges accountable — that that’s not something that’s permitted in the San Diego community.

Keehn said she’s been pressured to drop out of the race from the moment she filed.

“I received phone calls from individuals, from political leaders telling me that if I did not drop out of this race that there would be serious repercussions on my career and also possibly on my family,” Keehn said.

Here’s the deal, as explained to me repeatedly by various lawyers while I attempted to cover that campaign: any attorney challenging a sitting judge is going to have a hard time pursuing cases, regardless of what courtroom they appear in. Perhaps that’s why historically less than 10% of all superior court races–open or not– are contested.

It’s just not done. It can be done, but only with an extraordinary effort, like the recall of Judge Aaron Persky, who sentenced former Stanford University swimmer Brock Turner to six months in jail for sexually assaulting an unconscious woman. This was the first successful removal of a sitting Superior Court Judge since 1932.

Clearly, we have a systemic problem with the judiciary, one I would say is connected to the lack of real checks and balances on other aspects of legal processes. Can we solve this problem by (re) electing one judge, when a governor will just keep appointing from the same set of candidates? I’m not sure.

Maybe what Judge Gary Kreep’s probable (and deserved) unseating proves is that outliers of any stripe won’t be tolerated. Does anybody remember what life was like for liberal judge Roger Ruffin, who went back to private practice after 10 years on the bench?