11 Justices Try to Get a Little Exposure

Voters in Los Angeles, Ventura, Santa Barbara and San Luis Obispo counties will be asked Tuesday to cast “yes” or “no” votes for 11 justices on the 2nd District Court of Appeal.

Their names may be unfamiliar, but they hold California’s second most powerful judicial posts--the final arbiters of justice in more than 90% of appeals.

Court of Appeal justices face voters in the first gubernatorial election after their appointments and every 12 years after that. Their retention elections traditionally attract scant attention because the justices are virtually invisible outside the legal community.

“We are really the secret court,” said Justice Charles S. Vogel of the 2nd District Court of Appeal in Los Angeles. Reporters, he noted, seldom cover their work.

But this year, the Court of Appeal is getting exposure as never before, especially in the 2nd District.

Though their tenure is not seriously threatened, the justices have raised $230,000 and hired the political campaign firm of Cerrell Associates to direct the Committee to Retain the 2nd District Court of Appeal Justices.

“It’s not a question of being fearful or thinking that you’re on the run,” said Justice William A. Masterson of Los Angeles, chairman of the committee. “It’s simply prudence and a recognition that the people have the right to make a decision on whether to retain us.”

Masterson is among the 17 justices in the 2nd District who are not seeking retention this year. Forty of the state’s 93 justices are running unopposed for the jobs that pay $126,850 a year.

On a Campaign to Educate

For several months, the “Eloquent Eleven,” as they jokingly call themselves, have been speaking to civic, professional and community groups, explaining the court, their work and why it is important to keep them.

A vote to retain them, they say, is a vote for an independent and impartial judiciary.

“Our product is basically . . . taking each case based on the facts, and apply the law that is applicable,” said Vogel.

The 11 justices have received endorsements from Mayor Richard Riordan, U.S. Sen. Dianne Feinstein, Dist. Atty. Gil Garcetti, Public Defender Mike Judge, all five members of the Los Angeles County Board of Supervisors and several law enforcement organizations.

Citizens for Law and Order, a 1,000-member crime victims group based in Sonoma, is urging a “no” vote on three of the justices in the 2nd District for being too liberal. The group is also campaigning against a justice on the 4th District Court of Appeal in San Diego.

Bob Nicholas, executive director of Citizens for Law and Order, said his organization is opposing Justices Vaino Spencer, Arthur Gilbert and Earl Johnson Jr. of the 2nd District, and Edward J. Wallin of the 4th District based on a comprehensive study of their decisions in criminal cases.

The group’s campaign is not expected to have much impact.

“I’d be very surprised if anybody is in danger,” said Justice Marcel Poche of the 1st District Court of Appeal in San Francisco.

Some veteran court watchers, including former and present judges, question whether justices should campaign at all.

When justices hire a political consulting firm and raise campaign funds, it blurs the differences between judges and other elected officials, said retired Court of Appeal Justice Robert S. Thompson, who had a distinguished career on the bench and later at USC Law School.

He recalled the discomfort he felt when he received a mailer for a fund-raiser for the 2nd District judicial candidates.

“I got to thinking, what’s going to happen when sponsors of that dinner--the elite of the appellate bar--have an appeal and some poor schmuck who didn’t give any money to the justices represents the other side?” Thompson said.

A Unique Hybrid

Judges enjoy a special status in California. In 1934, the state adopted a nonpartisan election to insure judicial independence while giving citizens a way to check on their judges.

The system is a compromise between the life tenure of the federal judiciary and the partisan elections held in many states.

The governor appoints justices, but they must face voters in the first gubernatorial election after the appointment. Thereafter, they go before voters every 12 years and must receive a majority of yes votes to remain in office.

Gerald Uelmen, law professor at the University of Santa Clara and a veteran court watcher, said the system is based on a “very strong presumption” that appellate judges should be retained.

“Only if you have some specific information relating to misconduct,” he said, “should you consider voting not to retain a judge.”

Except for 1986, when Chief Justice Rose Elizabeth Bird was voted out of office along with two colleagues, no appellate jurist has been removed at the polls.

Justice Wallin, one of the four Southern California justices being targeted by Citizens for Law and Order, said he will not campaign or raise money.

“I’ve been a judge for 20 years, and I have not spent one cent or done one bit of campaigning,” he said, adding that “I am not against what the 2nd District is doing.”

In the last decade, the number of people voting to retain appellate court justices have dropped and the number of “no” votes have increased.

In the 1994 election, Justice Coleman Blease of the 3rd District Court of Appeal in Sacramento barely made it, receiving only 52%.

Approval Harder to Come By

Likewise, many in the 1994 election did poorly, winning in the 54% to 59% range--more than 10 points lower than the average approval rates in the 1980s.

The only exception was the appellate judicial candidates in the Los Angeles district, who enlisted Cerrell’s firm. They received 5 to 6 percentage points more than many of their counterparts in other districts.

One explanation for the decline of the “yes” votes is overall voter discontent with incumbents, said Stephen Barnett, a law professor at UC Berkeley’s Boalt Hall.

Another, ironically, may be campaigning by judges.

“Judicial elections have become more politicized and have attracted more campaign money, which increases the political nature of the elections,” he said.

Uelmen said voters unfamiliar with appellate jurists often vote against them for poor reasons.

“If you look around the state, appellate judges who draw the lowest approval rates are the ones who have foreign-sounding names,” he said his studies show. “When voters have so few cues about candidates, they seize on just the spelling of the name.”

Finally, Gideon Kanner, a professor of law emeritus at Loyola Law School, believes that the judiciary has lost some of its mystique because of the reach of litigation into many voters’ lives.

“People realize more and more that these are not demigods,” he said of the justices. “They are ordinary men and women, some of limited intelligence, some of limited experience, some of limited scope, and they make decisions accordingly.”

The local candidates are:

* Presiding Justice Vaino H. Spencer, Division 1. Spencer, 78, a Los Angeles native and a 1952 graduate of Southwestern University Law School, was appointed to the Los Angeles Municipal Court in 1961, the Superior Court in 1976 and the Court of Appeal in 1980. She was in private practice handling business and personal injury cases prior to going on the bench.

* Associate Justice Morio L. Fukuto, Division 2. Born and reared in Los Angeles, Fukuto, 68, is a 1954 graduate of Boalt Hall School of Law at UC Berkeley. In 1957, he became the first Japanese American prosecutor in the Los Angeles district attorney’s office. Named to the Los Angeles Municipal Court in 1974, he was elevated to the Superior Court in 1980 and the Court of Appeal six years later.

* Associate Justice John Zebrowski, Division 2. Zebrowski, 50, is a 1975 graduate of Georgetown University Law Center, who worked as an analyst on environmental issues at the U.S. Department of the Interior and practiced business law until his appointment to the Los Angeles Superior Court in 1986. He was elevated to the appellate court in 1995.

* Associate Justice H. Walter Croskey, Division 3. A 1958 graduate of USC Law Center, Croskey, 65, is the winner of the 1998 Jurist of the Year Award from the Los Angeles County Bar Assn. He practiced business law on the Westside for 23 years before going on the Los Angeles Superior Court in 1985 and the appellate bench in 1987.

* Presiding Justice Charles S. Vogel, Division 4. A 1959 UCLA Law School graduate, Vogel, 66, is a former president of the State Bar of California. He served on Municipal and Superior courts in Los Angeles from 1969 to 1977, left the bench to practice law, then returned as an appellate justice in 1993. His wife, Miriam A. Vogel, also is a member of the 2nd District Court of Appeal.

* Associate Justice Daniel A. Curry, Division 4. Curry, 61, who holds a law degree from Loyola University Law School and a business degree from Stanford University, served as a top lawyer for a number of corporations, including Times Mirror Co., where he was vice president and general counsel. Curry was appointed to the Los Angeles Superior Court in 1992 and elevated to the appellate court in September.

* Associate Justice Orville A. “Jack” Armstrong, Division 5. Armstrong, 69, who received a law degree from USC in 1956, is a former president of the State Bar of California. He was in private law practice until his appointment to the Los Angeles Superior Court in 1991 and the Court of Appeal in 1998.

* Associate Justice Paul H. Coffee, Division 6 in Ventura. A California native, Coffee, 66, earned both his law and undergraduate degrees at UC Berkeley. A former Navy pilot and a trial lawyer for three decades, he was appointed to San Luis Obispo Superior Court in 1992, and elevated to the appellate court in 1997. His father was also a judge.

* Presiding Justice Arthur Gilbert, Division 6. A two-time winner of the Appellate Justice of the Year honor from Consumer Attorneys of California, Gilbert, 60, is a Los Angeles native and a 1963 graduate of UC Berkeley’s Boalt Hall. Appointed to the Los Angeles Municipal Court in 1975, he was elevated to Superior Court in 1982 and appellate court in 1982.

* Associate Justice Earl Johnson Jr., Division 7. Johnson, 65, a 1961 graduate of Northwestern University School of Law, is an author and former USC law professor. He was a federal prosecutor and director of the National Legal Services Program before he was appointed to the appellate court in 1982.

* Associate Justice Richard C. Neal, Division 7. A student of William Faulkner and Flannery O’Connor’s writings at Harvard College, Neal, 51, is a 1973 graduate of Berkeley’s Boalt Hall. He practiced business law prior to his appointment to the Los Angeles Superior Court in 1992. He was elevated to the appellate court last year.