Friday, June 10, 2005
LACBA’s Republican Caucus Makes Endorsements
By ROGER M. GRACE
What would you think of the idea of Republican members of the Los Angeles County Bar Assn. banding together and issuing endorsements of judicial candidates?
Preposterous? Conducive to a politicizing of judicial races? Something that could never happen?
Well, believe it or not, it’s happened. ...But a long time ago.
It’s the fascination of the past that draws people to “paper fairs” featuring “ephemera”—printed matter nobody would have expected at the time it was generated to have anything other than momentary significance. Last Saturday, just as my wife and I were about to depart such an event at the Elk’s Lodge in Pasadena, I spotted in a $1 tray at one of the booths a yellowing 8½x11 sheet headed: “AS TO CANDIDATES FOR ASSOCIATE JUSTICE SUPREME COURT.”
The text began:
“At a meeting of the Republican members of the Los Angeles Bar, held on the 28th day of October, 1902, the following address was, by resolution, unanimously adopted and authorized to be published:
“The Republican members of the Los Angeles Bar desire to present to their fellow citizens of the state a brief statement concerning the Hon. Lucien Shaw, and his qualifications for the high office of Justice of the Supreme Court to which he was nominated by the recent Republican State Convention.”
There followed six paragraphs of high praise for Shaw, who had been a member of the Los Angeles Superior Court for 14 years, and a final paragraph noting, in passing:
“Believing that Judge [Frank M.] Angellotti’s well known ability and long and meritorious service on the [Marin] Superior Court Bench should be recognized and rewarded, we also heartily endorse his candidacy for Associate Justice of the Supreme Court.”
Among those signing the statement was E.A. Meserve, who in 1889 founded what is now known as Meserve, Mumper & Hughes LLP, one of the oldest law firms in California.
In case you had any doubts, I did pay the dollar to obtain a copy of what amounts to a press release, but a historical one reflecting that long-ago time in our state’s history when judges were partisan politicos.
During a talk before the Culver-Marina Bar Assn. early in 2000, I had occasion to comment: “Remember, you heard it here first. George W. Bush is nominated at the Republican convention, and is defeated in the fall election.” That was not, I quickly added, a prognostication of the outcome of the presidential contest that year, but a recitation of the facts in the case of Bush v. Head, decided by the California Supreme Court in 1908.
The case illustrates the mischief that can be spawned by the nomination of judicial candidates by political conventions.
In 1902, Charles M. Head was elected as judge of the Superior Court in Shasta, then a one-judge county. The Legislature in 1905 created a second judgeship for the county, which irked Head. Gov. George Pardee appointed Bush to the temporary vacancy, to be filled by voters in 1906. The Republican Party nominated Bush as its candidate for the post.
The Democratic Party nominated Head—whose existing term of office was not set to expire until January, 1909. Head promised the Democrats that if they nominated him, he would, if elected, decline to take the oath of office, thereby restoring the county to its one-judge status.
And voters, knowing of that pledge, elected Head in order to save tax money.
The upshot of the opinion was that Bush could maintain an election contest. Not reflected in the opinion was that Bush, in the meantime, had been appointed by Gov. James N. Gillett to the vacancy created when Head failed to take the oath of office.
That 1906 election was the last one in which judicial candidates were nominated at political conventions. The Legislature in 1909 enacted the Wright-Stanton bill, creating direct primary elections. However, judges were still nominated by political parties in the 1910 election.
Few would advocate a return to partisan elections for judgeships, the last such elections having been held in 1910. (Retention elections for appellate justices, another reform seemingly without detractors, came in 1934.)
It seems basic to us today that a judge who is included on a political party’s ticket is necessarily committed to the party’s platform while the only commitment a judge should have is to the law.
Yet, back in 1910, when the reform-minded Hiram Johnson was running for governor as the Republican nominee, his proclamation on Oct. 14 during a speech in Berkeley that “[w]e believe in a nonpartisan judiciary” drew fire. The Oakland Tribune, in an editorial appearing the following day, recited that “Mr. Johnson is not running on a non-partisan ticket,” and pointed out that the Republican judicial candidates “were nominated, as he was nominated, as candidates of the Republican party.”
The newspaper remarked:
“An appeal for a non-partisan judiciary voiced by the head of the Republican ticket can be construed as in the nature of advice to Republican voters to bolt their own judicial nominees in favor of Democratic candidates. Probably Mr. Johnson did not intend to give any such advice, but nevertheless his remarks admit of that construction. They were therefore unfortunate and calculated to disturb Republican harmony. For when party voters begin cutting their ticket they are not likely to stop at one man.”
In his inaugural address on Jan. 3, 1911, Governor Johnson repeated his call for a “non-partisan judiciary,” proposing:
“[W]hen upon the ballot the title of the judiciary is reached, the names of all the candidates may be printed without any party designation following those names; and in this fashion all of the candidates for judicial position will be presented to the people with nothing to indicate the political parties with which they have been affiliated.”
Oakland Tribune, Oct. 15, 1910
In his second inaugural address, on Jan. 5, 1915, Johnson recited advancements that had taken place during his first term. He was able to note that “election of judges, school officials, and county officers has been made non-partisan.”
An editorial in the Reno Evening Gazette on Oct. 9, 1912 urged that Nevada follow California’s example in ending partisan judicial elections. It observed that “[b]efore California adopted the non-partisan judiciary system,” there existed “the nefarious method of juggling with judges to satisfy varying moods of machine bosses.”
Shaw and Angellotti, the judges endorsed for the Supreme Court in 1902 by LACBA’s GOP division, were elected to 12-year terms. When they came up for reelection, it was the first year of nonpartisan balloting for justices of the Supreme Court. Angellotti ran for the post of chief justice that year and Shaw ran again for the office of associate justice.
There were two associate justice seats up for election on the Supreme Court that year and four candidates. The names of all four appeared bunched together; William P. Lawlor and Shaw drew the highest number of votes, each gaining election.
That sort of system (akin to that used now for electing members of parties’ central committees) has long struck me as one well suited to trial court elections.
Election after election, there are two outstanding candidates running for the same open seat and two less than stellar contenders vying for another open seat. In fact, in 1986, we had a choice between two candidates for the Los Angeles Municipal Court seat, incumbent David Kennick and challenger Robert Furey, judge of the Catalina Justice Court. Both were branded “not qualified” by the County Bar and were facing Commission on Judicial Performance charges (subsequently being ordered removed from office).
If there were five open seats and 14 candidates in a primary election, it would make sense to stick the names of all 14 candidates under the heading “Judges, Superior Court,” allow the voter to make five selections, and award the seats to the five top vote-getters. At least theoretically, this would result in the five best qualified candidates being elected. In practice, given that there’s a great deal of uninformed vote-casting in judicial elections, there would still be some voter blunders, but it would end the scenario of having to choose between a Kennick or a Furey or between two candidates with impressive credentials. Too, it would eliminate elections for open seats in the general election, this cutting the oppressively high costs of running for a judgeship.
I don’t suppose that notion will attract any more favorable response than my suggestion a few years ago of restricting voting in judicial races to that group that has the most interest in those races and the relevant knowledge: lawyers and judges. Allowing the lay public to vote for judges—often relying on advice from their lawyers or listings on slate mailers which they think are endorsements, not knowing that candidates pay to get on those slates—strikes me as inane. After all, we don’t have popular elections of the surgeon general of the United States or chiefs of staff of publicly funded hospitals, or presidents of state colleges; the public simply does not have informed bases for making such selections.
Elections of judges could be held in conjunction with balloting for the State Bar Board of Governors, with judges, whose bar membership is temporarily in limbo, being enfranchised with respect to judicial contests.
I’ve been told that this offends the precept of egalitarianism. That objection, I would suggest, is far outweighed by another policy consideration. My proposal would achieve a further depoliticization of judicial elections. That’s a cause that has advanced greatly since the time the leaflet I procured last Saturday was printed, but hasn’t advanced enough.
Terry Friedman was elected as a judge of the Los Angeles Superior Court in 1994. He was then a Democratic assemblyman and moneys rolled into his coffers from surplus funds contributed to partisan Democratic campaigns. Last year, Donna Groman attained a Los Angeles Superior Court judgeship having run as a Democrat, boasting endorsements from a myriad of Democrat clubs. Friedman and Groman were nearly as much Democratic candidates as Shaw and Angellotti were Republican candidates. The difference is that partisan election of judges was the system in 1902; it isn’t now, but nonpartisanship can be circumvented, as it was by Friedman and Groman.
Let’s get back to the main subject of the 1902 proclamation, Lucien Shaw.
He was personally and deeply affected by the San Francisco earthquake of April 18, 1906. A wire service story on April 25 of that year, emanating from Los Angeles, reported:
“Justice Lucien Shaw of the State Supreme Court has received advices that his wife, reported among the missing, has been found at the Presidio in San Francisco, safe and well. For two days after the disaster Justice Shaw, who sped north from here on a special train, searched San Francisco for Mrs. Shaw, returning here, hopeless, on Sunday.”
A 1906 recitation of the San Francisco earthquake by Hubert D. Russell told of Shaw’s frantic search for his wife. Russell was apparently unaware of the “happy ending” to the story, writing:
“Thursday morning at daybreak [Shaw] reached his apartments [in San Francisco] on Pope street. Flames were burning fiercely. A friend told him that his wife had fled less than fifteen minutes before. She carried only a few articles in a hand satchel.
“For two days and nights Judge Shaw wandered over hills and through the parks about San Francisco seeking among the 200,000 refugees for his wife.
“During that heart-breaking quest, according to his own words, he had ‘no sleep, little food and less water.’ At noon Saturday he gave up the search and hurried back to Los Angeles, hoping to find that she had arrived before him. He hastened to his home on West Fourth street.
“ ‘Where’s mother?’ was the first greeting from his son, Hartley Shaw.
“Judge Shaw sank fainting on his own doorstep. The search for the missing woman was continued but proved fruitless.”
After his 1914 reelection, Shaw went on to serve as chief justice from November of 1921 to January of 1923. He succeeded Angellotti, who had resigned from the post he won in 1914.
Following his retirement from the bench, Shaw became a member of the Board of Directors of the Pacific Mutual Life Insurance Company.
He died in Glendale on March 19, 1933, at the age of 88. He was survived by his wife, Anna, and his son, Hartley, a judge of the Los Angeles Superior Court.
The Hermosa Beach Chamber of Commerce and Visitors Bureau lists on its website as one of the burgh’s “points of interest” the “Justice Shaw House” at 740 The Strand. This description is provided:
“The former home of Supreme Court Justice Lucien Shaw, founder of the Los Angeles Bar Association. His family is still in the legal business in Los Angeles….”
Well, Shaw was actually one of the principals in 1888 of reorganizing the county bar, that group having started in 1878. Among other reorganizers was Walter Van Dyke who, like Shaw, later became a member of the California Supreme Court.
As long as we’re on the subject of history: this column was launched 32 years ago tomorrow.
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