Politics and the justice system: oil and water

California Supreme Court Justice Mariano-Florentino Cuéllar and the senior presiding justice of the Court of Appeal, J. Anthony Kline, each recently published columns in the Daily Journal, decrying the electoral challenge by San Francisco public defenders against four judges as being, in Justice Cuéllar's words, "crass political opportunism." (Cuéllar, "To ignore integrity is to attack integrity," March 27; Kline, "The politicization of the San Francisco County Superior Court," March 14).

Both justices point out that purely politically motivated challenges, without regard to the qualifications, competence and integrity of the judges themselves, "is to attack the integrity and independence of the courts. That does nothing to advance, and much to threaten, equal justice."

In People v. DeKraai, Division 3 of the 4th District Court of Appeal, affirming the trial court's decision to recuse the Orange County district attorney from prosecuting the penalty phase of a murder case, said: "On the last page of the Attorney General's reply brief it states, 'The trial court's order recusing the OCDA from prosecuting Dekraai's penalty phase trial was a remedy in search of a conflict.' Nonsense. The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair. These proceedings were a search for the truth. The order is affirmed." 5 Cal. App. 5th 1110, 1114 (2016).

Referring to the decision in DeKraai, the current Orange County district attorney was recently recorded in a video saying: "As far as the Court of Appeal, they're social friends. Judge [Thomas] Goethals and the different members of the Court of Appeal socialize, do dinners at each other's houses and such." It has been reported that this comment was made at a political campaign event seeking the endorsement of a GOP group for the DA's run for a sixth term as the county's chief prosecutor.

Did the district attorney intentionally and calculatingly impugn their judicial integrity by implying that the Court of Appeal found "substantial evidence" to support the trial court's decision that his office had a conflict of interest, because Justice Kathleen O'Leary, Justice Richard Fybel and Justice Raymond Ikola may have broken bread with (then) Judge Goethals?

Let us sincerely hope not.

Regrettably, our current political and social discourse seems marked with incivility, ad hominem attacks and divisiveness. Dragging our judicial branch down to this level of discourse and political opportunism by officers of the court is troubling. Canon I, of the California Code of Judicial Ethics, explains that: "An independent, impartial, and honorable judiciary is indispensable to justice in our society." The Advisory Committee comment recognizes that: "Deference to the judgements and rulings of courts depends upon public confidence in the integrity and independence of judges."

The very foundation and structure of our justice system, and in turn the order and stability of our community, rests upon the public's willingness to follow the judgments and rulings of our judiciary, which they do because they have trust and confidence in the integrity of our institution of justice. In turn, it must be understood that public trust and confidence is based upon "both the reality as well as the public perception of integrity." Political words and deeds are all about affecting public perception. When those words and deeds question, without basis, the integrity of judges and justices the fabric of our chosen governance unravels and so to our society.

The ethics bible for California judges asks and answers: "What is the role of judges to secure public confidence in the independence, integrity, and impartiality of the judiciary? ... It is about judicial conduct, and public confidence that is earned when judges take actions that place the good of society above self-interest." Rothman, Fybel, MacLaren, Jacobson; "California Judicial Conduct Handbook," 4th Ed.; Section 1:36, p. 27 (emphasis added).

Lawyers too have a responsibility to safeguard public trust and confidence. Rightfully so, the Civility Guidelines for the Orange County Bar Association, the county where I am privileged to sit, provides in its preamble: "Lawyers should inspire public regard for the profession and for the judicial system. Rudeness, distrust, or abusive tactics by lawyers do not reflect well on the legal profession or inspire the public's confidence."

I believe that every person who works in our justice system -- judges, judicial officers, district attorneys, public defenders, private counsel, court clerks, all of us -- has an obligation to be stewards of public trust and confidence in our judicial branch. When a court clerk takes money to fix tickets, public trust and confidence is eroded. When the integrity of judges and justices are impugned, without basis, by elected officials, the public's perception of the integrity of our justice system is undermined. When government attorneys challenge well-respected and well-qualified judges simply and solely because the governor who appointed them does not fit the attorneys' political persuasion tears form in our fabric of justice. And when judges engage in conduct inimical to our Code of Judicial Ethics, cracks appear in the foundation of our constitutional form of governance.

When any of us fail to "take actions that place the good of society above self-interest," the public perception of the integrity of our institution of justice suffers. Especially when officers of the court resort to ad hominem attacks or engage in "crass political opportunism," the message is unmistakable -- the justice system is rigged -- that the decisions and judgments of the court have no integrity and need not be followed -- a message we all must zealously guard against.