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Bar’s Candidate -Judging System Is Unfair

<i> Eric E. Younger is a judge in the Los Angeles Superior Court. </i>

The Los Angeles County Bar Assn.'s methods for evaluating judicial candidates are a well-intentioned but inherently defective system that should be abolished. Having received a “well-qualified” rating, I have no personal complaint--but the system is unfair.

The rating is done by two types of lawyers: The leadership of the county Bar and its evaluation committee consists of outstanding individuals generally from major downtown law firms. But the people being rated who practice alone or in public offices, such as court commissioners or municipal court judges, are often individuals with whom big-firm lawyers are not likely to be personally familiar.

This is not an evil by itself, but it means that the leaders, whose prestige lends credibility to the process, are by definition depending on the assessments of others in making their evaluations.

Other members of the evaluation group (deputies from the district or city attorney’s or public defender’s office and private trial lawyers) are generally honorable people who often do know the candidates, but they can have conscious or unconscious axes to grind. It is an unpalatable but real fact-of-life in the adversary system that one institution’s advantage in the courtroom is another’s disaster, and the Municipal Court judge or commissioner getting the public’s job done in a high-volume setting often makes both sides’ lawyers angry. Some people are capable of saying, “He ruled against me every time, but he does a great job,” but that calls for more dispassionate judgment than most of us can command.

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Since all of the evaluators in this second category are subject to hearing rumors (whether they want to or not), there is a ripple effect to consider: Does, for example, Judge X really “give away the store” in criminal sentencing as “word has it” around the district attorney’s office, or has he spent several years in a “master calendar” courtroom, which is the court where the majority of defendants with less serious charges are sentenced. Is Judge Z really rude, or were the lawyers who reported that behavior simply embarrassed by their lack of preparation in her courtroom?

Because of an understandable need not to dry up sources, comments are gathered under a pledge of secrecy. Much of the information is good, but some of it is not, and it does not come well-labeled. Any secret process licenses slander, and, because the candidate is given no specifics about adverse information, it can easily (through the normal psychological response to a charge not denied) be elevated to the status of “proof.”

While I was a judge in Municipal Court, I went once to Sacramento to testify before a legislative committee on behalf of Los Angeles County on a victim-witness protection bill that passed without any opposition. On the day on which I testified, a tough drunk-driving bill was before the same committee, and a leading defense lawyer from Glendale testified against it. The lawyer, an apparently respectable man with whom I had almost no other contact, was on the 1980 rating committee, and he complained that I was “constantly in Sacramento testifying on prosecution bills.” Either he was intentionally lying (I don’t know why) or he had confused my role with someone else’s. Secrecy would have allowed the misinformation to pass unchallenged, but several committee members “leaked” the proceedings, so I was able to challenge it.

The system fosters the illusion, not the reality, of fairness. The evaluation committee points out that candidates with less than top ratings can appeal to the entire committee, but what good does that do when the candidates are not told what the adverse information is?

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“Due process” in my own case was provided only by the strictly forbidden leaks. Some Bar leaders’ statements that “due process” isn’t an issue in the rating system (because liberty or property is not taken) can most charitably be described as “unfortunate,” as one sort of assumes basic fairness to be important to the Bar’s work.

The system is uniquely hard on high-visibility candidates, and the current presiding judge of the Los Angeles Municipal Court (who is facing a runoff for Superior Court) serves as an excellent case in point: If she is “unqualified” for the higher court, why did a majority of her colleagues pick her in a free election (no longer based on seniority) to lead them?

Her main mistakes have been public-relations gaffes, such as telling people that she wouldn’t seek higher office if elected presiding judge and then changing her mind, holding an unnecessary ceremony or seeming to have too high a profile. She may not have practiced good politics, but that does not have a great deal to do with her qualifications to decide cases intelligently--a quality not even mentioned in the controversy surrounding her.

None of this is to say that the ratings are always--or even often--wrong, and the Bar’s objective of neutrally helping voters learn about candidates is laudable. But there have been ratings that have been painfully wrong, and the American traditions of notice of charges, public confrontation by accusers and the corresponding ability to present a real defense should be as much the right of a candidate for high public office as an accused before the Bar of Justice.

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