A high-ranking state appellate court justice acknowledged that he helped draft the tough "three strikes" sentencing law, bringing criticism from some jurists who say he overstepped his role as a disinterested arbiter of law.
James A. Ardaiz, presiding justice of the Fresno-based 5th District Court of Appeal, kept his role quiet until after The Times reported this month that Mike Reynolds, sponsor of the "three strikes" Proposition 184 on Tuesday's ballot, stated that three judges helped write it.
At the time, Reynolds refused to name the judges, saying they had asked to remain anonymous because they might have to rule on "three strikes" cases. Ardaiz and two Fresno Municipal Court judges came forward after the article appeared.
In an interview, Ardaiz said he had always intended to recuse himself from appeals involving "substantive" legal questions about "three strikes." Defending his decision to help write the measure, Ardaiz said: "My motivation is very simple. I want to see (California) be a better place to live. I want it to be a safer place to live."
A former deputy district attorney in Fresno and a judge since 1981, Ardaiz, 46, is seen as a judge on the move. If anything, his role may help his ascent, particularly if Gov. Pete Wilson, a backer of Proposition 184, wins reelection next week.
However, some colleagues criticize his involvement in the highly charged issue, saying he has lost the appearance of neutrality on criminal law. They attacked Ardaiz for keeping his role quiet, and say his actions may affect the state Supreme Court, where his brother-in-law, Justice Marvin Baxter, sits.
"This is a guy who still thinks he's in the D.A.'s office," said a veteran Court of Appeal justice, a Democrat.
The judge was one of 10 current and former appellate judges called by The Times. Like the others, the justice spoke on the condition that he not be named.
"This is getting into the area of being very pro-law enforcement," said a retired Republican Court of Appeal justice. "Judges give that up, and adopt a neutral role."
The debate is not clear-cut over whether judges should write laws, or merely interpret them. Some judges, lawyers and academics say judges should become more active in drafting legislation.
"The canons of judicial conduct permit judges to become involved in improvements regarding administration of justice," said Jerome Falk, head of the California Academy of Appellate Attorneys. "I don't see how you can differentiate between issues that are mundane and are controversial."
Justice Baxter did not comment. But Ardaiz said his actions will not affect Baxter, noting he "voted before to reverse me and I'm sure he has done that without the slightest pang of conscience."
But some believe Ardaiz's role in "three strikes" places Baxter in a difficult position when "three strikes" cases reach the high court.
"If I were Baxter, I would recuse myself," said the appellate court justice who is a Democrat. "It is an area that is gray. But I would recuse myself, and most judges would."
Ardaiz said he met with Reynolds, a family acquaintance, shortly after Reynolds' daughter, Kimber, was slain in June, 1992. Over time, Reynolds asked Ardaiz and two other judges to write a measure aimed at imprisoning repeat offenders. The judges obliged, producing what Ardaiz calls a "core framework."
The first "three strikes" bill stalled in the Legislature in 1993. But Reynolds persisted, pursuing the initiative, as well as legislation. "Three strikes" became law in March. Proposition 184 on next week's ballot mimics that statute, a sweeping measure certain to result in longer prison terms for thousands of felons. Ardaiz said provisions of the current measure were part of the initial "outline."
Judges expect many challenges to "three strikes," and say the bulk of the issues will be decided by state courts of appeal such as Ardaiz's. With Ardaiz stepping aside in "three strikes" cases, there would be nine other judges on the district's court to decide such questions.
Although Ardaiz helped write the measure, he stops short of endorsing it.
"I did not want a judicial title attached to a piece of legislation," he said.
Reynolds has shown no such inhibition. He has tried to assure voters that the measure was solidly written by saying judges were involved in drafting it.
Although Ardaiz insists that his involvement was known by a "large number of people," it was not evident to organizers of a May forum in Fresno on "three strikes," at which Ardaiz was a panelist. When lawyer Catherine Campbell, who helped organize the event, learned of Ardaiz's involvement, she said her reaction was "total shock."
"He was an outright advocate," Campbell said. "It was a dishonesty by omission."
Ardaiz maintained that nothing he said amounted to an endorsement.