Politics Cited as Judge Is Taken Off Case

Superior Court Judge Jack M. Newman, whose impartiality had been questioned by a Republican county supervisor because of Newman’s past ties to the Democratic Party, was removed Wednesday from a case involving county regulation of gay bathhouses.

Judge Warren Deering upheld the county’s request to disqualify Newman. Deering rejected arguments from bathhouse owners and the American Civil Liberties Union that the challenge was illegal because it stemmed from Supervisor Pete Schabarum’s complaints about Newman’s former party affiliations.

“This is one of the starkest examples I’m aware of of using the political process to undermine the judiciary,” said ACLU attorney Paul Hoffman.

But even if the challenge was filed because of Schabarum’s complaints, there is no evidence that the county’s request for another judge--a common request usually granted almost routinely--violates anyone’s rights, Deering ruled.

Not a Litigant’s Right

“A litigant does not have a constitutional right to be heard by a particular judge. It necessarily follows that a judge does not have a constitutional right to preside over a particular case,” Deering wrote.

Attorneys for the bathhouse owners and the ACLU agreed that parties to a lawsuit can assert that a judge is biased or prejudiced without having to explain why, but they said the current case was different because it was based on Newman’s past role as counsel for the Democratic Party and a member of the state and county Democratic central committees.

Lawyers are allowed to file peremptory challenges against potential jurors, but not challenges based on unconstitutional grounds, such as race, sex or religion, and the same should hold true for judicial challenges, argued Barry Litt, attorney for the bathhouse owners.

Move Followed Criticism

Litt contended that Deputy County Counsel Steven Carnevale filed the challenge against Newman after Schabarum criticized an earlier decision by the judge requiring the county to expand its efforts to register poor and minority residents to vote and demanded to know why county attorneys had not challenged Newman earlier in view of his past Democratic Party affiliations.

Carnevale said the challenge was not politically motivated. He said it was filed because he believed Newman could no longer hear the county’s case impartially in light of Schabarum’s inflammatory comments.

Schabarum could not be reached for comment Wednesday but an aide, Tom Hibbard, said Newman’s decision in the voter registration case was “clearly tainted by political considerations.”

“I think it’s perfectly appropriate for a member of the Board of Supervisors to raise questions like this. . . . You hear regularly that judges are involved in making decisions based on political considerations rather than judicial considerations,” Hibbard said.

Newman has declined to comment on the case, which is now scheduled to be heard by Judge John L. Cole next Wednesday.