Monday, August 17, 2009
Would Selection of Poochigian for Court of Appeal Be a Merit Appointment?
By ROGER M. GRACE
An uncontroversial proposition is that partisan politics should play no role in appointments to judicial offices. If former state Sen. Charles S. “Chuck” Poochigian is nominated as a justice of the Fresno-based Fifth District Court of Appeal—which appears likely in light of strong support for him in that district—the question will be asked:
Is this a reward for service to the Republican Party, or does the man truly deserve the post?
Fanning the controversy will be the fact that the State Bar Commission on Judicial Nominees Evaluation has adjudged Poochigian “not qualified” for the appeals court.
Poochigian, the 2006 Republican nominee for attorney general, clearly is a party loyalist; on the other hand, as some see it, his qualities are such that even Democratic Gov. Gray Davis might have appointed him had Poochigian applied while Davis was in office.
If nominated by Gov. Arnold Schwarzenegger, it would be the second time the Republican governor will have chosen a party stalwart for a judicial post despite a dinging by JNE. In 2007, real estate broker Elia Pirozzi, who held membership in the State Bar, was named to the San Bernardino Superior Court despite a “not qualified” JNE rating and over the grumbling of Judicial Appointments Secretary Sharon Majors-Lewis.
Pirozzi was chairman of the San Bernardino County Republican Party in 2000-03 and founded the West Valley Republican Assembly in 2004.
Like Pirozzi, Poochigian is solidly a Republican. He was a Republican legislator—an assemblyman from 1994-98 and a state senator from 1998-2006—and he served two Republican governors, as chief deputy appointments secretary to George Deukmejian and appointments secretary to Pete Wilson.
Unlike Pirozzi, however, he also has credentials as a lawyer. Admitted to the State Bar in 1975, he was in general law practice from 1975-88, and now works for the Fresno law firm of Dowling Aaron & Keeler.
Lack of judicial experience is probably the major factor in his being downgraded by JNE commissioners. Kathleen Banke was confirmed on July 30 as a justice of the First District Court of Appeal, with note being made that JNE had rated her only “qualified.” (Higher potential ratings are “well qualified” and “exceptionally well qualified.”) She had been on the Alameda Superior Court for only three years. A finding of “not qualified” as to Poochigian, who has not spent a day on the bench, reflects consistency.
But did JNE concentrate unduly, with respect to Poochigian, on “legal experience”? As I’ve commented before, my wife was a member of that body; I know how diligently the commissioners work; I have great respect for its evauation process. Nonetheless, no human institution is infallible.
The criteria for evaluating candidates are set forth in Government Code §12011.5, which says in para. (d) :
“In determining the qualifications of a candidate for judicial office, the State Bar shall consider, among other appropriate factors, his or her industry, judicial temperament, honesty, objectivity, community respect, integrity, health, ability, and legal experience.”
Though I was obviously not privy to information gathered by JNE in the form of confidential questionnaires and interviews, I understand that the only concern was in terms of “legal experience.” However, the code provision goes on to say:
“The State Bar shall consider legal experience broadly, including, but not limited to, litigation and nonlitigation experience, legal work for a business or nonprofit entity, experience as a law professor or other academic position, legal work in any of the three branches of government, and legal work in dispute resolution.”
Poochigian’s experience in the Executive Branch included playing a substantial role in the appointment of judges under Deukmejian, and being Wilson’s key advisor as to judicial appointments. In the Legislature, he dealt with laws. Being a lawyer is, of course, not a requirement for the Assembly or Senate; legislating is not tantamount to law practice. Nonetheless, when a lawyer is involved in legislating, the lawyer—unlike a rancher or a grocer—relies on legal knowledge and engages in legal interpretations of existing statutes, legal interpretations of court decisions dealing with those laws, and legal interpretations of proposed laws. For a lawyer, the undertaking necessarily becomes, by virtue of the lawyer’s approach to it, “legal work.”
While it is generally preferable for Court of Appeal justices to have real-world trial court experience—a proposition I would imagine Poochigian subscribed to when advising Wilson on whom to appoint—the nature of Poochigian’s work outside of a courtroom is relevant.
One leading Fresno lawyer is former State Bar President Anthony Capozzi. I contacted him Friday. He remarks as to the possible appointment of Poochigian:
“I’m a Democrat. He’s a Republican. I support him strongly for the Court of Appeal.”
Capozzi says he has tried cases opposite Poochigian and lobbied him while State Bar president (in 2003-04). What he found, the lawyer relates, is that Poochigian is “very open minded.” On the appeals court, he says, Poochigian would simply “follow the law” rather than having a “mind-set” that would restrict his thinking.
Told him of Poochigian’s rating, Capozzi was incensed. His response:
“I’m stunned. I’m stunned.”
“I think he would be ‘well qualified’ if not ‘exceptionally well qualified.’ He’d be excellent.”
The former bar chief adds:
“My God, I feel sorry for him. It’s just terrible, it’s not fair, it’s not just.”
Poochigian’s qualifications for the trial bench are strong...but I can see some reasonableness in JNE’s skepticism as to whether he’s ready for the Court of Appeal in light of his lack of trial court experience.
Capozzi points out that there have been “very outstanding justices who have never been on the trial court bench before going on the appellate court.”
He says they add a “different perspective” to the court.
Retired Fifth District Court of Appeal Justice George Zenovich—a Democrat who served in the state Assembly from member of 1963-70 and the state Senate from 1971-75—also says he supports the appointment of Poochigian. He tells me that his service in the Legislature was “very valuable” to him on the Court of Appeal because he had knowledge of legislative intent.
He comments that Poochigian “was a hell of a good legislator, though conservative. He was intelligent, asked good questions.”
If nominated, Poochigian is almost certain to be confirmed by the Commission on Judicial Appointments. In passing on a nomination to the Fifth District Court of Appeal, the panel would consist of its constant members, Chief Justice Ronald George and Attorney General Jerry Brown, and by the presiding justice of the district, James A. Ardaiz.
George is a politician who wants to be beloved by those in power, including the governor, and would not make waves.
Brown is the man who beat Poochigian in the race for attorney general. He would seem petty if he voted against his erstwhile rival unless he could do what Attorney General John Van de Kamp did in 1990 in voting against confirmation of his 1982 opponent. Van de Kamp provided blistering comments about Sacramento Superior Court Judge George Nicholson from persons who had viewed his performance, thus justifying a vote not to confirm him as a justice of the Third District. (It was the lone “no” vote.) Brown would not be able to produce any such denigrating comments about Poochigian.
Ardaiz is, like Poochigian, a Fresno Republican. His wife, Pamela, in 1994 contributed $300 to Poochigian’s Assembly campaign. Ardaiz and Poochigian are supporters of “three strikes,” they’re on the same wave length.
Poochigian, also contacted Friday, was reluctant to comment. He says:
“I have to respect the confidentiality of the process.”
He recalls that when he was appointments secretary, he assured potential appointees “that confidentiality of the process would be maintained.”
If appointed and confirmed, he will fill a vacancy created in November by the death of Justice Thomas Harris, and will serve on the court with his former law partner, Steven M. Vartebedian.
The Fifth District included the counties of Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne.
Copyright 2009, Metropolitan News Company