This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Judges and Judiciary,
Government

Aug. 22, 2018

Keep judges out of politics

Since the last effort in 2000, there has been little public discourse about the need to put a constitutional amendment on the ballot to fix judicial elections. The time has come to have that discussion.

Administration Building

Noël Wise

Judge, Alameda County Superior Court

Complex


Attachments


Judges in California have been compelled to become politicians who must campaign in contested elections to keep their jobs. Campaigns require fund-raising and are notoriously discordant affairs that are at odds with the independence we value in our judiciary. This is not a new problem. Contested judicial elections date back to ratification of our state constitution 139 years ago. This predicament can and should be readily fixed, but it will require a constitutional amendment.

In the Progressive Era of the early 1900s there were concerns throughout the United States that judges sitting in state courts were engaged in divisive campaigns and partisan elections that threatened to compromise the impartiality of the judiciary. In California the response was a 1934 ballot initiative to amend the state constitution to ensure that all judges would initially be appointed by the governor, but would be subject to retention elections by the voters.

The argument in favor of the initiative that was included in the voter information guide 84 years ago still resonates: "One of the chief obstacles to the proper administration of justice in California today is the fact that our judicial offices have become prizes to be fought for in the political arena, rather than positions of trust and confidence. For the protection both of the judges themselves and of society, they must be freed from political influence."

The ballot initiative was an elegant solution -- judges would not face contested elections and therefore would not be put in the untenable position of having to raise money or seek endorsements. Instead they would be appointed based on a rigorous, merit selection process. The balance of power was retained because judges could be impeached by the Legislature or removed directly by the people, either through a recall, or by voting not to keep judges when they were up for retention at the end of their terms.

That promising resolution was stymied in its execution. Instead of a single ballot measure, on Nov. 6, 1934, California voters were given the confusing choice of two similar ballot initiatives to reform the judiciary: one for the Supreme Court and appellate courts (Proposition 3) and a second for the superior courts (Proposition 14). There were 23 propositions on the ballot that year and 100 percent of the first eight were approved by voters. Proposition 3 was prominently placed among popular measures such as bonds for veterans to purchase farms or homes and tough anti-crime initiatives. Only 40 percent of the remaining 15 ballot measures were approved. Proposition 14 was oddly buried among disparate and provocative proposals for the time, including expanding eminent domain and the establishment of a naturopathic medical association. Proposition 3 passed. Proposition 14 did not.

California now has what is sometimes called a modified Missouri Plan. Nearly all judges in the state are appointed by the governor. The Supreme Court and appellate court justices are subject to retention elections at the end of each 12-year term. In the rare case that the people choose not to retain a justice, the governor vets and appoints an appropriate replacement. This is not so for the 1,732 superior court judges in our state. Every six years each faces a potential challenge by any lawyer who has been admitted to the California bar for the last 10 years.

Californians were prophetic nearly a century ago when they expressed concern that judicial elections would continue to cultivate public distrust, and create actual and perceived ethical quandaries for judges. We are living that lamentable reality and it is as unacceptable now as it was in past generations. Today judicial campaigns regularly run in the hundreds of thousands of dollars and can cost millions. Our current system unconscionably asks a sitting superior court judge, or a lawyer seeking that position through a contested election, to seek campaign contributions and endorsements, and to make stump speeches during an election season, and then hope the public will believe that individual is impartial and unaffected by the political process once he or she is on the bench. It does not matter whether the taint is real, or any bias intended, only that our society has a legitimate basis to question objectivity and independence when a judge may make a decision because it is just -- or because it is in their interest to do so for the next election.

A superior court judge who has earnestly served the public for nearly 20 years, and who is ethically opposed to engaging in partisan politics, faces a Hobson's choice if she is challenged in a contested election in the final years before being eligible for retirement. She can choose to avoid the conflict by abandoning her judicial post and her deep-seated commitment to public service, denying her colleagues and the court the benefit of her expertise, mentorship and efficiency, and forsaking her retirement and potentially eviscerating the long-term financial security of her family. Alternatively she can defy her principles, mount a political campaign, and accept financial donations, while simultaneously trying to remain non-partisan as she exercises her judicial duties.

This begs the question of whether it is reasonable to expect the public to make a choice about whether to elect someone to the bench or to reelect a sitting judge in a relative vacuum of information. When candidates are running for office in the executive or legislative branches of government they are able to share their views on nearly any topic of interest to voters -- crime, education, health care, unions, gun-control, environmental policy. Judges, however, are ethically prohibited from publically speaking about any issue that is, or may be, before them. This leaves precious little room to discuss anything that may be of import to voters on the campaign trail. If Californians cannot glean substantive information from judicial candidates, then our current process invites another unacceptable dilemma for the public -- vote without sufficient knowledge, vote based on arbitrary demographic information (e.g., a surname, physical appearance, race or gender) that does not legitimately inform whether an individual has the experience or temperament to be an outstanding jurist, or don't vote at all.

The California Constitution ensures that the people of our state can remove any judge from office. It is an infrequent occurrence, as it should be with well-vetted judicial appointments, but Californians have proven they will remove a judge or justice, either by recall or by voting against retention, when they believe it is necessary. We should have every confidence that they will continue to do so in the future. That assurance affords us the requisite balance of power to correct the incongruity created by the 1934 election. Judges must not be forced to be politicians. The public ought never to wonder whether a judge is biased or beholden to anyone who contributed to the judge's campaign. Much like our free press, our independent judiciary is our country's port in a storm. Its integrity sustains us.

In 2000, there was a brief attempt to fix the discrepancy that was created in 1934 by eliminating contested elections in the superior courts and replacing them with the retention elections that exist in the appellate courts. That bill died in committee before getting to a vote. There has been little public discourse since then about the need to put a constitutional amendment back on the ballot. The time has come to have that discussion.

#348902

For reprint rights or to order a copy of your photo:

Email jeremy@reprintpros.com for prices.
Direct dial: 949-702-5390

Send a letter to the editor:

Email: letters@dailyjournal.com