The State : Your Least-Informed Vote Could End Up Killing You

Charles L. Lindner is former president of the Los Angeles County Criminal Bar Assn

Welcome to your biannual encounter with a black hole--voting for judges. When you arrive at the midpoint of your ballot Tuesday, you might recall Butch Cassidy's recurring question to the Sundance Kid: "Who are those guys?"

Well, those guys--all 240 Superior Court judges--can kill you.

Judges daily play a far more important role than the governor or Legislature in the lives of ordinary citizens. The governor may order new prisons built, but a judge decides whether an 18-year-old gets to sing alto in the prison choir. And it is a judge who decides which spouse gets the house, or whether you keep your driver's license.

Enforced voter ignorance is California's compromise solution to "judicial reform." Under the guise of "professionalism" and "merit appointments," the power elites seem to have a vested interest in frustrating any meaningful public participation in judicial selection. Practically speaking, as long as judges avoid the death penalty, raising taxes or desegregating schools, they can go about their careers guarded by the impenetrable shield of public ignorance.

Sitting judges would probably do away with elections completely but for the bugaboo of California's 90-year constitu- tional experiment with populism. Starting in the 1920s, such reformers as Chief Justice Phil S. Gibson sought to increase the professionalism, autonomy and competence of the courts. But to do so required giving in to anti-democratic pressures that placed judges above the voters. Conversely, it was clear that judges should be insulated from the tyranny of a mob mentality, no matter how democratic the mob's origins may be.

So California adopted the Modified Minnesota Plan: The judiciary would be professionalized and jurists would be subject to periodic voter review. The governor first fills a judgeship by appointment, and the newly appointed judge stands before the voters two years later (Superior Court) or as many as six years later (Municipal Court).

This quasi-populist plan has not worked terribly well. Running for a judgeship in Los Angeles is outrageously expensive. The registrar charges a Superior Court candidate $92,550 to publish a 200-word ballot statement. If a challenger is wealthy enough to overcome this hurdle, there is an ambush waiting when he or she submits a statement to the registrar. As if to guarantee public ignorance about the contestants, the Elections Code forbids a judicial candidate from writing anything about his opponent in the pamphlet, even if a charge is true.

Take a Burbank Municipal Court race. Incumbent Marion E. Gubler obtained an injunction to prevent his opponent, attorney Rand S. Rubin, from noting that Gubler was publicly censured for judicial misconduct by the California Supreme Court--even though the charge is true and is published in the Supreme Court's case reports. In Gubler vs. Commission on Judicial Performance (1984), the court stated: "His (Gubler's) culpability transcends mere legal error. All of the misconduct established in the foregoing opinion constituted as least conduct prejudicial (to the administration of justice); some was committed with gross negligence; and some amounted to willful misconduct. The commission's recommendation of public censure is clearly correct."

The court's case disposition reads: "Accordingly, and by this order, Judge Gubler is publicly censured."

Why is it illegal for Rubin to quote the state Supreme Court in his ballot statement? Because when applied to judicial elections, the breadth of the First Amendment's "free speech" provisions are limited. And who does the limiting? Judges do the limiting. So even when they screw up, it is virtually impossible for citizens to learn about it.

Neither major political party favors judicial elections because judgeships are a patronage goodie. Chicagoans call it "clout." California lawyers call it "juice." Whichever. A lawyer becomes a judge by pushing enough "juice"/"clout" through the political pipeline to attract the governor's attention.

It is a recurring joke at the start of UC Berkeley's one-week "Judges' College" that some newly appointed judge will introduce his- or herself by saying, "I was a merit appointment." Such a jurist soon carries an invisible name tag that only his colleagues can read: "Harmless Idiot--Do Not Take Seriously."

Whether by dint of "juice" or merit, a judge appointed to sit in Los Angeles County probably has a job for life, because who is going to tell you if he or she messed up?

The ultimate problem, of course, is that few attorneys are willing to comment publicly on a judge's qualifications. After all, the judge might still be there the day after the election.

The only source of information in such a situation is the Los Angeles County Bar Assn., which includes a Judicial Evaluations Committee that screens the candidates. Committee membership is quite diverse, embracing the full spectrum of legal and political beliefs, from extreme right to left, from large law firms to solo practitioners. Prosecutors and defense attorneys are active as well.

Before an election, the committee's 50 members spend months checking the backgrounds and skills of the candidates. Ideology is not considered. What counts is experience, demeanor, ability and scholarship. Candidates are ranked either "well-qualified," "qualified" or "unqualified." On the whole, the committee's assessments are accurate, but like any judgment, should be considered along with other available information.

These evaluations certainly provide a rational alternative to voting for judges on the basis of gender, ethnic-sounding names or strange titles. But they require a voter to be enormously self-motivated. Clearly, most voters don't have the time for such an undertaking, and end up relying on others to make up their minds.

As a result, we have a system of judicial review that is neither populist nor independent of political influence.*

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