Shopping for Judges, California Style

Under California law, litigants are given a single opportunity to remove a trial judge from a case without offering any reason or explanation. This device, like a similar opportunity to remove jurors, is called a peremptory challenge.

In the context of ordinary litigation, where a single judge rules on all the legal issues, the peremptory challenge of judges serves a valid purpose. It’s often impossible to prove the actual bias of a judge, so giving a litigant one opportunity to veto the judge assigned to the case without such proof enhances the appearance of fairness. This rationale frequently breaks down, however, when the blackball is placed in the hands of litigants such as district attorneys, public defenders and major corporations and insurance companies. By the sheer number of their cases, such “institutional” litigants can reduce a judge to permanent unemployment by blanketing him or her with peremptory challenges in every case.

The state Supreme Court has expressed grave concern about the potential for abuse of blanket challenges, but the practice persists. In recent years, blanket challenges filed by the Los Angeles County district attorney have forced at least two trial judges out of criminal courtrooms altogether; both were reassigned to civil cases.

In the hands of institutional litigants the peremptory challenge becomes the power to remove a judge from the bench. When the blackball is utilized for political motives, it becomes blatantly offensive. Unfortunately, the arrogance of institutional litigants is growing like a cancer in California. They now see the opportunity to exercise the biggest peremptory challenge of all by permanently removing three justices of the California Supreme Court.

The peremptory challenge has never been available in cases on appeal, since every case is decided by at least three judges. In the Supreme Court, all seven justices hear every case. While a justice can be challenged by showing actual bias in a particular case, this procedure is rarely utilized.

The 1986 judicial-retention elections present a unique opportunity. If the electorate can be persuaded to remove the justices who don’t vote their way, institutional litigants have a lot to gain. Chief Justice Rose Elizabeth Bird and Associate Justices Joseph R. Grodin and Cruz Reynoso have been targeted. That might explain why so much of the anti-court propaganda emphasizing death-penalty decisions is being paid for by corporations and insurance companies that don’t really care about cases imposing tort liability for defective products, or cases limiting real-estate development in order to protect the environment. They are alarmed by cases expanding the rights of tenants over landlords, consumers over merchants and employees over employers. They care enough to shell out a lot of money to change the results in those cases, and the easiest way to do that is to remove justices who don’t vote their way.

Last April, Kern County Dist. Atty. Ed Jagels, chief spokesman for Crime Victims for Court Reform, convened a press conference to assail the fact that lawyers accounted for most of the contributions to the Rose Bird campaign. In contrast, he claimed that his group’s support was coming from “ordinary citizens who give $10 and $15 apiece.” The campaign disclosure statement filed by Crime Victims for Court Reform for the first six months of 1986 reveals a very different picture: 86% of the cash contributions were in amounts of $100 or more. Well over half came from business interests including banks, insurance companies and real estate developers. The largest single contributor was the Independent Oil Producers Agency. The “ordinary citizens” included two of President Reagan’s wealthy friends, Holmes Tuttle and Henry Salvatori, at $1,000 apiece. Lawyers are well represented, too. They tend to be either deputy district attorneys or partners in the downtown law firms that represent banks, insurance companies, real-estate developers and oil companies.

The contest over retention is being served up to the public as a referendum on the death penalty. But the attack on the court is being financed by institutional litigants who are motivated by crass self-interest. The law doesn’t give them a peremptory challenge to remove a justice, but the financial power that they have to influence the outcome of the election may give them the power to remove three justices without disclosing the reason.

The obvious winning strategy for the justices under attack would be to persuade voters that their self-interest would be advanced by upholding the current majority. Consumers, tenants and employees have a lot to lose if the liberal justices are removed. Don’t look for that kind of pitch from the justices, though. Judicial ethics preclude them from appealing to political constituencies with implied promises that these groups will gain something by their retention.

Thus the battle lines are drawn--one side waving the bloody shirt of death penalty reversals, the other side wrapping itself in the flag of judicial independence. In the background, chuckling up their well-starched sleeves, are the institutional litigants who have the most to profit from the outcome.