Tuesday, July 16, 2019

A Bedtime Story for the Young and Old The theme - Emotion Tempered by Reason

Once upon a time, many years ago (I prefer "years" to "decades"), I was a lawyer.  Today all judges first have to be lawyers.  But back when I practiced law, not all judges had to be lawyers.  I remember appearing on a criminal case before a justice of the peace who was a pharmacist.  It was rumored that his rulings were written on prescription pads.  To make sure his prescriptions, I mean rulings, were within the law, the reasonable deputy D.A. assigned to his court made tactful suggestions on rulings and sentences.  The justice of the peace followed them, and we were all happy.  Ah!  The good old days.
But all good things come to an end.  In 1974, when I was still practicing law, the California Supreme Court in Gordon v. Justice Court for Yuba Judicial Dist. (1974) 12 Cal.3d 323, 325-326, in a unanimous opinion written by Justice Louis Burke, held that the "practice of allowing non-attorney judges to preside over criminal trials of offenses punishable by a jail sentence, as is the situation in over 60 percent of the justice courts in California," violates the due process clause of the 14th Amendment of the U.S. Constitution.  Whew!  Life goes on.
But now all judges have to be members of the State Bar to be eligible for judicial appointment or election to the bench.  See Cal. Const., art. VI, section 15.  And if you go to article VI, section 16, you will learn that judges are elected by the people.  But more often than not, trial judges are appointed by the governor and are subject to a rigorous vetting process.  But you all know that. 
So getting back to when I was a lawyer so many years ago.  There were judges who on occasion, more than I wish to admit, ruled against me.  But in those good old days, no one ran against a sitting judge because of disagreement over a ruling. 
But, in 1970, Los Angeles Superior Court Judge Alfred Gitelson was challenged at election time because of his order to desegregate public schools in Los Angeles.  An outcry over the decision by some people in the community resulted in a campaign to unseat Gitelson, who was referred to as the "bussing" judge.  The campaign succeeded.  Gitelson was defeated in the election.  He could have waited to make his controversial decision after the election.  But Gitelson was a judge of high integrity and he made his decision when he was ready to rule, irrespective of the election which was around the corner.
Most of Gitelson's order was eventually upheld by the California Supreme Court.  Only that portion of Gitelson's order that sought to define desegregation in racial and ethnic percentages was reversed. 
Incidentally, the challenger who defeated Gitelson was defeated in the next election.  And guess what?  The person who defeated Gitelson’s challenger was also defeated in the next election.  Imagine, three judges were defeated in subsequent elections for the same judicial office.
We in the legal community thought that Gitelson’s defeat was an aberration and that judicial contests would not be commonplace in the future.  We saw the Gitelson judicial office position with three incumbents losing as an abnormal jinx.  The third judge to lose the election in “the Gitelson judicial office” listed herself as an “incumbent.”  Many of us speculated that is why she lost, not because she was an incumbent, but because many voters did not know what an “incumbent’ was.  Perhaps it sounds threatening or subversive.
Occasional judicial contests occurred in later years, some of which involved lawyers challenging judges with foreign or unusual sounding names.  That alone made the challengers unfit for office. 
But what is occurring in this coming election seems unprecedented.  To quote the philosopher George Santayana, who is often misquoted, "Those who cannot remember the past are condemned to repeat it."  I think I prefer what is reputed to be a misquote, "Those who refuse to learn from history are doomed to repeat it."
That is what is happening now.  Judicial elections have become a free-for-all where the public is facing a bewildering array of judicial races with no clue how to vote.  Many candidates challenging sitting judges are not qualified to be on the bench and hope an unsuspecting public will punch the hole next to their names in the voting booth.  The campaign by San Francisco public defenders to unseat four highly competent veteran judges because of the judges’ party affiliations or the governors who appointed them is shameful.  Judge Curtis Karnow, Judge Jeffrey Ross, and Judge Cynthia Ming-mei Lee have proven themselves to be fair, unbiased and exceptionally well qualified judges.
In Los Angeles one candidate admits why he is voting against Superior Court Judge Malcolm Mackey.  The challenger states it is because some 20 years ago he was upset with a couple of Judge Mackey’s rulings, one of which involved granting a new trial.  However chagrined this challenger may be against a ruling, he should get over it.  It is noteworthy that Judge Mackey was rated exceptionally well qualified by lawyers vetting the candidates.  I know Judge Mackey well and his exceptionally well qualified rating is justified.
In San Luis Obispo, I know of two highly qualified judicial officers who are on the ballot, Superior Court Judge Hernaldo Baltodano and Commissioner Tim Covello.  I know them and their work.  They are exceptionally well qualified and deserve your vote. 
But is the average voter in a position to make an informed voting choice for judicial candidates?  A few weeks ago in the Los Angeles Times, Diana Wagman, contributing writer to the Opinion Section, writes that she is an enthusiastic voter who tries to be well versed on the issues and candidates.  But she was justifiably upset to learn that “no more than a quarter of the dismal 11% of eligible voters who go to the polls bother choosing judges at all.”  
I too am as frustrated as Ms. Wagman.  The sound or familiarity of a name or the appearance of a candidate on a slate mailing should not be the reason for a vote for a judicial candidate. 
          So that is again why I urge lawyers and judges to spread the word to friends and to members of the public.  Capable judges who have gone through an extensive and thorough vetting process deserve our vote.  An unpopular decision, but legally proper decision with which there may be disagreement, should never be the reason for a “no” vote.  That threatens the independence of the judiciary and weakens the fabric of our democracy.  This warning is of particular significance in the recall attempt of Judge Aaron Persky.
Oh, I almost forgot.  This started out as a bedtime story.  For now the story is over.  Get a good night’s sleep.  Hope you don’t have nightmares.  And good luck to the worthy judicial officers who deserve your vote tomorrow.

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