Tuesday, June 13, 2006
Los Angeles Times’ Editorial Scoring Reappointment of Janavs Is Ill-Reasoned
The Los Angeles Times was off-base Sunday in its assertions in an editorial criticizing the decision of the governor on Friday to reappoint Los Angeles Superior Court Judge Dzintra Janavs following her defeat in the June 6 election.
The Times acknowledged that Janavs “was unfairly targeted by an opponent because her Latvian name made her vulnerable,” but said:
“GOV. ARNOLD SCHWARZENEGGER did something Friday that every elected official probably dreams about: He overruled the voters. And though in this case his decision is justifiable, it’s not something a democracy should encourage.”
That’s pap. He didn’t overrule voters. Voters decided that Lynn Diane Olson, the challenger, would be elected to a seat on the Los Angeles Superior Court. Schwarzenegger did not countermand that decision (nor would he have the power to do so). For better or worse—undoubtedly for worse—Olson will, on Jan. 8, take office.
Although the editorial said at the outset that Schwarzenegger’s decision was “justifiable,” succeeding verbiage contradicted that concession, implying that what it really meant to say was that the decision was understandable but wrong. The editorial commented:
“Voters may have acted ignorantly or foolishly in ousting Janavs, but that was their decision….
“We cannot simultaneously pretend that we respect voters’ decisions and then overturn them if we think they were wrong.”
Voters did “oust” Chief Justice Rose Bird and two of her California Supreme Court colleagues in 1986. It was a retention election (as we have in this state for appellate court justices) and the decision was made against retaining the three jurists. By contrast, there was no vote to “oust” Janavs. It was not a retention election. Rather, the decision was to elect Olson over Janavs in a one-on-one contest.
The implication that Schwarzenegger countermanded voters’ wishes reflects a lack of heed to the circumstances surrounding the race.
To put this race in context, it would be useful to contrast it with previous Los Angeles Superior Court elections in which incumbents failed to gain new terms.
In 1970, voters spurned the reelection bid by Los Angeles Superior Court Judge Alfred Gitelson. There was a substantial issue in the campaign against him: ire over his order mandating de facto racial integration of Los Angeles schools by September, 1971 (impliedly implicating “forced busing” of school children).
Six years later, the man who defeated Gitelson in a run-off, William Kennedy, was himself defeated at the polls in a run-off. Again, the challengers had an issue against the holder of the office. Kennedy was lazy, and was an all-around lousy judge. He was found “not qualified” by the Los Angeles County Bar Assn.
That same year, an attorney, S.S. Schwartz, one of two challengers, defeated a respected judge, Emil Gumpert, also in a run-off. Again, there was an issue: the advanced age of Gumpert, 81, and the unlikelihood he would serve out another six-year term. The Times endorsed Gumpert in the primary, then thought about it, and jointly endorsed the two run-off candidates.
In 1980, attorney Burton Bach challenged Los Angeles Superior Court Judge Kenneth Chang who had terminal cancer. Chang had been able to show up for work only three times in the past one-year period. Bach ran ads in the Times with a photo of an empty courtroom. Chang’s loss stemmed from a significant issue.
The challenger who wrested the seat from Kennedy was Roberta Ralph. She, in turn, was defeated in 1988. The attorney who succeeded her, Harvey Schneider, raised no issue against her. She lost, and that loss is commonly attributed to her use of the ballot designation, “Incumbent,” rather than spelling out her office title. Also a factor was the appearance of Schneider’s name on most if not all of the slate mailers.
Had a governor reappointed Gitelson, Kennedy, Gumpert, or Chang—notwithstanding voters’ obvious repudiation of those jurists—it would have been a manifestation of arrogance and irresponsibility. Our system of “checks and balances” does not entail a governor’s prerogative of overriding the clearly expressed decisions of the electorate.
By contrast, if the governor had appointed Ralph, it would not have been arrogant or irresponsible. No campaign issue was raised against Ralph. (Pressed by this newspaper to identify any weakness whatsoever in the incumbent’s performance, Schneider declined to do so.) On the other hand, there was no groundswell of support on the part of the bench or bar for an appointment of Ralph. She had hardly been a disgrace to the bench but was simply not that great of an asset.
That brings us to the present contest, the only one since 1988 in which a Los Angeles Superior Court judge was defeated. What the Times failed to grasp was that no issue was raised by Olson against Janavs. The campaign bore no resemblance to the emotion-laden anti-Gitelson effort in 1970, or the highly charged anti-Bird campaign in 1986, or even the calmer contests against Kennedy, Gumpert, or Chang. Schwarzenegger did not veto any determination by the electorate that Janavs, based on faulty performance, should be stripped of a judgeship.
The Times’ statement that Schwarzenegger “overruled the voters” was based on simplistic reasoning.
Janavs lost because 1.) she had a foreign-sounding name and 2.) Olson paid large sums to monopolize slate mailers. Those mailers included those going to Republican voters in which this ardent Democrat falsely portrayed herself as being politically in alignment with them.
It was highly responsible, indeed commendable, for the governor to declare his intent to reappoint Janavs in light of 1.) the evident absence of any desire on the part of the electorate to effect a denial of future judicial office to Janavs based on displeasure over her performance; 2.) the rating of Janavs by the Los Angeles County Bar Assn. as “exceptionally well qualified”; and 3.) the immediate request of the presiding judge of the Los Angeles Superior Court for a reappointment, bolstered by the support of scores of judges and lawyers.
The governor no doubt appreciated that critics would charge that he was acting to reverse an action of the voters. Notwithstanding the inevitability that such carping would ensue, Schwarzenegger had the courage to make his announcement Friday that he would appoint Janavs. It’s shameful that ill-considered grumbling would emanate from the region’s major newspaper which surely has the resources to pull up and thoughtfully consider the relevant information.
There is ample precedent for the appointment by a governor of a judge who has been defeated at the polls. (Contrary to information in news articles in the Times and the Daily Journal, the various instances do not include any reappointment of Abe Khan who, after his 1992 defeat at the polls while a member of the Citrus Municipal Court, gained membership on the Los Angeles Municipal Court in 1994 through election, not appointment.)
Even if not supported by precedent, the action by Schwarzenegger would be right in light of the unique circumstances: a 20-year veteran of the Superior Court, who attained the County Bar’s highest rating, losing to a non-practicing attorney deemed “not qualified” by her colleagues and whose victory stemmed from the incumbent’s name, coupled with high spending.
(Indeed, Janavs might well have won had she simply listed herself as “D.I. Janavs” rather than “Dzintra I. Janavs.”)
We applaud the decision of the governor to re-appoint Janavs and decry the slap at the governor’s decision in the Times.
Another aspect of the same editorial—its off-handed call for an end to judicial elections—will be commented upon tomorrow.
Copyright 2006, Metropolitan News Company