Tuesday, February 19, 2008
Page 6
PERSPECTIVES (Column)
Lawyer Mounts Election Challenge to Judge Ralph Dau...but Why?
By ROGER M. GRACE
I’d love to see Los Angeles Superior Court Judge Ralph “Bud” Dau booted off the bench. I appeared before him on Sept. 26 and Oct. 9 of 1997 and found his conduct at those hearings, and in the aftermath of them, despicable. Nonetheless, it strikes me as harebrained for Redondo Beach attorney Sydnee R. Singer to mount an election challenge to him.
What’s the point of it? She simply has no realistic chance of winning.
Her finances are slim—and Dau’s aren’t. He has the title of judge; she doesn’t. She has no attention-grabbing issue. He’ll win.
Last week, Singer met with me (in connection with a possible endorsement by this newspaper) and at the same time with staff writer Steve Ellis (who will prepare a profile on her—provided the contest goes forth). That meeting convinces me that the best thing she could do, in everyone’s interest, would be to drop her challenge.
It goes without saying that it would be in Dau’s interest...though I personally don’t give a hoot about his interests.
Too, it would be in Singer’s interest. “Obviously, I’ll be committing some of my own money to this,” she says, but rules out the prospect of plunking $100,000 into campaign coffers. “Unlike Judge Dau, I don’t have those kind of assets,” Singer tells us. Whatever money she would put in would go down the drain. Her notion that fundraisers could yield sufficient resources to enable her to spread her message to the populace and bring her victory is a fantasy.
Generally, few other than lawyers and judges contribute to judicial contests—and even then, typically in small amounts. Any judge who contributed to Singer would become an outcast among colleagues. Lawyers who contributed more than $99 would have to be listed on Singer’s financial report and would not only incur Dau’s wrath, but that of other judges.
Singer would be well advised to save her money and withdraw.
That would also benefit judges of the Superior Court. When one of their own is challenged, they tend to rally behind their colleague. So, judges who don’t know Dau—and that describes most judges, given his anti-social nature—and even judges who don’t particularly like him (and it’s easy not to) will wind up dipping into their pockets to make financial contributions, if Singer follows through and files her nominating papers.
A judge who has given money to Dau’s campaign which he or she would otherwise have used for theater tickets just might bear a grudge against Singer, possibly reducing her effectiveness while appearing before such a judge.
Efforts to topple a sitting judge rarely succeed. Where the goal is achieved, the challenger has had more going for him or her than optimism and desire.
It was in 1970 that Superior Court Judge Alfred Gitelson was defeated by an obscure attorney, William Kennedy. There was an issue against Gitelson, an emotion-charged one: his ruling in favor of forced busing of children from their neighborhood schools to other schools in order to achieve racial balance. Singer does not have any such issue.
She merely says of Dau, without elaboration, that “[h]is style is very, very different than mine.” That amounts to no issue.
Even if she put forth that Dau is sometimes abusive to attorneys, as he is, it would not be sufficient ammunition to fell the incumbent. That issue was raised—legitimately—against Henry Patrick Nelson in 1988 and Ronald Sohigian in 1996. Both were found to be “not qualified” by the Los Angeles County Bar Assn. Yet, the challengers came nowhere close to victory.
Political consultant Joe Cerrell guided both judges to victory. With respect to Nelson, he turned abusiveness into a plus for his client, portraying him as a judge who was strict, holding attorneys to high standards…engendering the public reaction of “Good for him.” In fact, Nelson’s conduct was so outrageous that he surely would have been removed as the result of Commission on Judicial Performance hearings that were imminent had he not staved off ouster by resigning.
Here follows a comprehensive look at the Superior Court challenges that did succeed, and why, as well as some that didn’t.
In 1972, Judge Richard Schauer (later a Court of Appeal presiding justice) was challenged by the husband of a woman he jailed. Schauer won overwhelmingly. A challenge based on a desire for personal vengeance did not succeed that year, nor has one since.
Judges Charles Older, Edward O’Connor, and Robert Kenny (a former state attorney general) overcame opposition in 1974. I well remember the race against Older, the iron-fisted autocrat who sent reporter Bill Farr to jail for refusing to reveal his controversial news sources in connection with the Charles Manson case. I was volunteer campaign manager for one of the challengers, Deputy District Attorney Alex Kahanowicz. The candidate I helped—whose name was foreign-sounding—campaigned feverishly and attracted only 14 percent of the vote; Deputy Public Defender Christopher Smith, who did not discernibly campaign at all, bagged 20 percent. An affront to the First Amendment, unlike busing, was not perceived by voters as affecting them personally and feelings were not roused.
Two years later, two Superior Court incumbents were defeated: Emil Gumpert, based on his age—81—and Kennedy, the man who had defeated Gitelson.
There was a strong issue against Kennedy. He did little work. The Los Angeles County Bar Assn. branded him “not qualified” and the Los Angeles Times, in endorsing attorney Roberta Ralph, quoted the LACBA report as saying that Kennedy was “seriously lacking in industry and diligence” and that “he often takes the bench late, adjourns early and does not carry a full workload.” The quote continued: “His inattention to duties renders him manifestly incompetent to fulfill the responsibilities of a Superior Court judge.” Taxpayers do not like being fleeced.
LACBA is not apt to label Dau lazy and incompetent. He’s not lazy and his deficiencies do not rise to the level of incompetence. Even if it did give him a “not qualified” rating—which is highly unlikely given a favorable view of him by some lawyers, chiefly ones doing civil defense work for major firms—the bar association’s rating committee would not produce quotable zingers. It rates these days, but provides no explanations.
Two other incumbents in 1976 beat off challenges. One of them was Laurence Rittenband (late cousin of MetNews staff writer Kenneth Ofgang).
Although Singer alludes to the fact that Dau will be 70 later this month, that’s not so advanced an age as to create a campaign issue. While the octogenarian Gumpert was cast aside by voters based on age, Rittenband, 70, wasn’t…nor was he six years later at 76. In both elections, challengers made note of Rittenband’s age.
In 1978, eight Superior Court judges were challenged. All won except Leopoldo Sanchez who had been censured in 1973 by the California Supreme Court for willful misconduct in office in the form of pre-signing bail release forms. Dau has not incurred public discipline.
The Los Angeles Times—whose endorsements were far more influential then than now—backed Sanchez’s victorious challenger, James Ideman (later a U.S. district judge for the Central District of California). Its editorial says that “Sanchez simply does not rank among the most proficient or energetic members of the court, and we believe his challenger would.” Taxpaying voters, as noted, will revile at laggardly performance.
The allegation in the election that year that Judge William Drake mistreated lawyers did not stir the public’s interest.
1980: five Superior Court judges were challenged; none lost. Those challenged included Gabriel Gutierrez as to whom an issue did exist: as a commissioner, he had tried to date a female litigant in a case before him. Also overcoming a challenge was Samuel Greenfield, 67, accused of being “curt and rude.”
Four judges drew opposition in the next election. One lost: Kenneth Byung-Cho Chang. Moribund, he had come to work only three times in the past year. There is no issue as to Dau’s health.
Also, the challenger to Chang, Burton Bach, placed advertisements in the L.A. Times depicting an empty courtroom. It has been many years since judicial candidates have placed display ads in the Times, which are costly. (I’m not an ad salesperson for the Times, but I would think such advertising would be more productive than placing a candidate’s statement in the Voter’s Pamphlet—priced at $83,000, for an English version, alone. An eighth-page ad in the main section of the Times would be $15,309 except on Sundays, when the charge would be $19,167.75.) Even assuming Singer could afford to advertise in the Times, however, she would just not have a message that would excite readers. A bland statement that her style would differ from Dau’s would hardly spark a landslide victory for her.
In 1984, two incumbents were targeted; both won. Two years after that, there were no challenges.
Three judges already mentioned—Nelson, Bach, and Ralph—had opposition in 1988. Nelson and Bach prevailed; Ralph didn’t…the loss generally being attributed to her use of the ballot designation “Incumbent,” rather than one utilizing the words “Judge” and “Superior Court.” Dau would not make that mistake, as no Superior Court incumbent since then has. Also, Ralph’s challenger, Harvey Schneider, spent heavily.
In 1990, a challenge to Judge Lourdes Baird failed. It was based on the fact that President George Bush had nominated her for the federal trial bench and the contention that there was no point in electing her. Since non-confirmation by the Senate loomed as a possibility, albeit an unlikely one, the challenge was not well taken. (Baird did ultimately gain confirmation.)
One Los Angeles Superior Court judge, Joyce Ann Karlin, was challenged in 1992, in a race that drew national news attention. Three lawyers ran against her. The issue was her sentencing of a Korean American shop owner, Soon Ja Du, to probation after the woman was convicted of the killing of a 15-year-old African American girl, Latasha Harlins, with whom she struggled after accusing her of shoplifting. There was outrage in the black community over the sentencing, but Karlin (represented by Cerrell) prevailed in the primary.
Ronald Coen had a competitor, of sorts, in the 1994 primary. Unhappy over a single ruling by the judge, the challenger created a contest just to make “the sucker sweat,” putting on no real campaign, and losing.
Two Superior Court judges were on the primary election ballot in 1996, both winning. One of them was Sohigian, who had two challengers.
In 1998, two incumbents drew opposition and won. One of them, Alexander Williams III, prevailed over former county Assessor John Lynch, who had name identification. Also, Lynch had an issue: the public admonishment of Williams by the Commission on Judicial Performance the year before. The agency found that the judge “used profanity, made a vulgar gesture and threatened retaliation toward counsel in a case pending before the judge”—which was putting it mildly. (He, too, was a Cerrell candidate. One is left to wonder if Leopoldo Sanchez, also a recipient of CJP discipline, would have prevailed in 1978 had he been similarly represented.)
Four sitting Superior Court judges faced voters in 2000…though they weren’t on the Superior Court bench when they were filed against. The seats of four judges of municipal courts in the county were contested; unification then occurred, rendering the jurists Superior Court judges; the matches were decided, notwithstanding unification, by voters in the respective areas that formerly constituted municipal court districts. None of the incumbents lost.
Two Superior Court incumbents were forced to face voters in 2002, both winning. One of them was Floyd V. Baxter, an erstwhile municipal court judge in Newhall who ascended to the superior court as the result of unification. As a bungler and seemingly a persistent liar, he was potentially vulnerable…but only if a well-financed effort had been made by someone of stature. The challenger in that race, like Singer, had neither lucre nor prominence.
The other challenged incumbent, C. Robert Simpson, was 77.
In the next biennial judicial election, four judges were tackled by would-be replacements. One of them, Chesley McKay Jr., was vulnerable; in ill-health, he had been away from the courthouse. His challenger—though endorsed by the Times—failed to unseat him. She put on virtually no campaign…though her illegally posted campaign placards could be spotted here and there. This was in contrast to the spirited and well-financed effort Bach staged in 1980 against Chang. The outcome points both to the need for finances and to the dwindling influence of Times editorials.
Two judges that year each drew three challengers. Dan Oki had been supervising criminal courts judge and David Wesley was the assistant supervising judge on May 28 when a group of defendants who had not been arraigned by the end of the day were ordered by a commissioner to return the next day; one of them, who was charged with carjacking, didn’t return. About a month later, he fatally shot a man. The candidates opposing Oki and Wesley tried to portray them as being responsible for the death. It was a phony issue; the public didn’t buy it; the incumbents won in the primary.
Lynn Olson—the “Bagel Lady”—did topple a 20-year incumbent, Dzintra Janavs, two years ago, without an issue. But that was atypical. Janavs was targeted because Olson’s campaign consultant, Fred Huebscher, had concluded that Janavs would be in jeopardy if challenged because of her foreign-sounding name. While Dau has peculiarities, his name is not among them.
Too, Olson, proprietor of a Manhattan Beach bakery/ sandwich shop, announced at the outset of the campaign that she wouldn’t spend more than $1,000; Janavs hired Cerrell but no major effort was made to counter a seemingly ill-fated challenge; right at the end, there came a torrent of spending by the Bagel Lady’s committee. Huebscher had secured his client’s place on slate mailers. While Janavs’ name was no doubt a factor in her loss to a lawyer without a practice, Olson’s spending—about $120,000—was surely an indispensable element. (Janavs was reappointed by the governor, but is retiring this year…possibly to avoid facing another election challenge orchestrated by Huebscher.)
In the four-decade period from 1966-2006, 52 members of the Los Angeles Superior Court were forced to defend their judgeships. Six were defeated: Gitelson because of the busing issue (1970); Gumpert based on advanced age (1976); Kennedy in light of his indolence (1976); Chang in view of his medical incapacity (1980); Ralph given that she had goofed up and used the ballot designation of “Incumbent” (1982); and Janavs (2006) by reason of her name. In the latter two races, in which there was no issue against the incumbent, there was vastly highly spending by the challenger.
During that 40-year period, there were 55 challengers in races in which the incumbent prevailed. Of those 55, only one—Clarence Stromwall—later ascended to the Superior Court. (As a judge of the Los Angeles Municipal Court, he unsuccessfully challenged one of “Jerry Brown’s judges,” Superior Court Judge Florence Pickard, in 1978, and was appointed to the upper trial bench in 1985 by Gov. George Deukmejian.)
Is Dau fit to serve in his post? From what I encountered 11 years ago: no. Maybe he has, as I’ve been told, grown into the job, to an extent. But I doubt that deep-down defects could have been remedied.
Whatever Dau’s shortcomings are, the prospect of his defeat at the polls is close to zilch. Singer would be wise to abandon her ill-considered challenge.
Copyright 2008, Metropolitan News Company