Governor Oversteps His Bounds

Gov. Gray Davis recently said judges he appoints should vote his way on death penalty, abortion and gay marriage issues and, if not, resign. That position is an anathema to the separation of powers in government.

The governor’s later bromide that he supports an independent judiciary was unconvincing because he never recanted the first statement. Not only did Davis shoot himself in the foot, he wounded his judicial appointees, though the few he has appointed so far in Orange County have excellent reputations.

Whether the judiciary will be hurt by what he said will not be known for years. In Orange County, confidence in judges’ independence is especially vital now. Measure F, which voters passed March 7, faces constitutional scrutiny. It requires a two-thirds majority approval by voters for airports, toxic waste sites, and jails near populated areas. Initiatives have not fared well in court.

The courts in Orange County have had their fair share of proud moments. By nature, judges are an independent lot. Governors cannot control judges they appoint any more than parents can control teenage children once they leave home--or, for that matter, reach the age of 13.

Governors and presidents often have appointed judges whom they thought had philosophies like theirs, but who ruled contrary to expectations. President Lincoln appointed Salmon P. Chase as chief justice primarily to uphold the constitutionality of the greenback legislation, which Chase drafted to finance the Union in the Civil War. Lincoln confided, “We wish for a chief justice who will sustain what has been done in regard to emancipation and the legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore, we must take a man whose opinions are known.”

When Chief Justice William H. Rehnquist provides this quotation of Lincoln in “The Supreme Court, How It Was, How It Is” (Morrow 1987), he comments, “It may well be that if Lincoln had actually posed the question to him before nominating him as chief justice, he would have agreed that the measures were constitutional. But administrators in charge of a program, even if they are lawyers, simply do not ponder these questions in the depth that judges do. . . “ Chase found the act unconstitutional.

Supreme Court Justice Harry Blackmun, who authored the Roe v. Wade right-to-abortion decision, is a more recent example of a judge who surprised and disappointed the president who appointed him. Judges have braved public outcry and even threat of physical harm. Judge Learned Hand of New York upheld as free speech conduct challenged as sedition in wartime. U.S. District Judge Frank Johnson of Alabama struck down segregationist statutes despite death threats.

As early as 1872, the U.S. Supreme Court recognized it was “a general principle of the highest importance to the proper administration of justice that a judicial officer . . . be free to act upon his own convictions, without apprehension of personal consequences to himself.”

California laws promote judicial independence. An anti-bias statute requires: “A judge shall be disqualified if . . . a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Based upon this statute, Davis may have hindered his appointees in hearing death penalty, abortion, and gay rights cases to the extent he sought agreement from them on these issues.

Another doctrine, immunity, protects judges from civil liability, even for exceeding jurisdiction, or for malice or corruption. (Judges face discipline for misconduct.)

Orange County judges have demonstrated independence under fire. Last year, Superior Court Judge Everett Dickey found misconduct in a Los Angeles prosecution and released a long-imprisoned Black Panther leader.

Last month U.S. District Judge David Carter granted an injunction to protect gay students who wished to form a club at a high school in Orange. He enforced a 1984 act of Congress and followed decade-old Supreme Court precedent, but public outcry made it seem like new law.

Other Orange County judges have shown independence in rendering decisions that could offend powerful political interests, even when executive branch officials ducked for cover.

The recent case of the police officer defamation statute comes to mind. In that case, U.S. District Judge Gary Taylor examined a statute that allowed only a police officer to file suit for defamation against anyone who filed a false and malicious complaint with his employer. All other complaints to public officials were protected by a broad immunity.

Under precedent, Taylor had to invalidate the statute as violating constitutional protection for free speech, because it improperly discriminated based upon the content of the communication.

As Measure F goes to court, one thing is clear: The independent judges faced with deciding its constitutionality will not get to duck. Ducking is not a luxury judges have, and they won’t be thinking about what they told the governor’s appointments secretary years earlier.