Monday, June 28, 2010
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Council Rejects Ban on Seeking Party Backing in Judicial Races
By KENNETH OFGANG, Staff Writer
The California Judicial Council on Friday voted not to support a controversial proposal that would ban judicial candidates from seeking endorsements from partisan groups.
On a voice vote, the council turned down a request by the Implementation Committee of the Commission for Impartial Courts that it endorse the proposed amendment to the Code of Judicial Ethics. The proposal now goes on to the state Supreme Court, which has the final say on any changes in the code, without the council’s support.
The council met Friday in San Francisco, with the proceedings being broadcast over the Internet.
The ban on seeking endorsements may have been the most controversial among 71 recommendations of the 88-member commission appointed by Chief Justice Ronald M. George two years ago. George appointed Justice Ming Chin to chair the commission, which the chief justice said was needed to respond to developments in other states that he said were threats to judicial integrity.
December Vote
The Judicial Council voted last December to accept the report and direct the Administrative Office of the Courts to develop an implementation plan. As part of that effort, the commission appointed the Implementation Committee, which presented several recommendations to the council earlier this year.
While a number of the recommendations were uncontroversial and were adopted by the council on its consent agenda, the ban on endorsements ran into objections, as did a proposal to mandate that judges and judicial candidates attend classes on campaign ethics. The California Judges Association voted to oppose both proposals, and the education mandate was also rejected Friday on a voice vote.
The endorsements rule would prohibit judges, as well as judicial candidates, from seeking the backing of “political organizations.” That term is already defined by the code to include “a political party, political action committee, or other group, the principal purpose of which is to further the election or appointment of candidates to nonjudicial office.”
Constitutionality Questioned
Critics have questioned the constitutionality of the proposal, saying it would not likely pass muster under Republican Party of Minnesota v. White (2002) 536 U.S. 765, which invalidated a Minnesota law preventing judicial candidates from discussing public issues that might come before the court. Supporters argued that the ban would be constitutional because it would not ban groups from endorsing, but would prohibit candidates from openly soliciting that support or using it in campaign materials.
“We felt it would pass constitutional muster to keep elections nonpartisan and to maintain those as nonpartisan if the candidates were prevented from seeking or using those endorsements,” Fourth District Court of Appeal Justice Douglas Miller explained on behalf of the Implementation Committee.
But the proposal came under fire at Friday’s meeting from two council members with considerable election experience—Los Angeles Superior Court Judge Burt Pines, a former Los Angeles city attorney and state attorney general candidate, and retired Superior Court Judge Terry Friedman, a three-term Democratic member of the state Assembly before winning a contentious race for an open judicial seat in 1994—as well as by state Supreme Court Justice Marvin Baxter.
Baxter questioned the fairness and logic of telling candidates that they can seek endorsements from a labor union or a chamber of commerce, but not from a political party.
Friedman agreed, arguing:
“Is there really a difference between a candidate for judicial office being endorsed by or seeking endorsement in order to be endorsed by a political party and then [doing] the same with an interest group? And where do you draw the line with interest groups?
“Well, maybe you don’t exclude the Chamber of Commerce, but what about, you know, pro-life or pro-choice organizations. There are so many interest groups out there, all remembering the context all of this comes from, it’s big money that comes into the campaigns, and I’m not sure it’s that we’re relieved of that worry by somehow pretending that political parties aren’t going to be involved.”
Besides, he noted, a candidate would be free to seek the endorsement of well-known partisan political figures, including the individual heads of the groups whose endorsement he or she could not seek.
“I worry about the constitutionality,” he said. “And even if it isn’t unconstitutional, I worry about the unfairness of singling out one type of endorsement and not all the others that could be even more problematic.”
A number of judges, Pines said, have questioned the fairness of the proposal, which would leave incumbent judges, but not their challengers, subject to Commission on Judicial Performance discipline. While challengers would be subject to discipline by the State Bar, or by the commission if they were to win, Pines acknowledged, “…I think there is no greater fear among a sitting judge than the sword hanging over them with the initials CJP.”
He elaborated:
“So if you have a restriction, the fear is that the attorney will look at it and say, I’ll deal with the happy circumstance if I win, whatever the CJP may throw at me, but the sitting judge is subject to that discipline right now.”
Miller acknowledged the “slippery slope,” but insisted the measure was needed.
“Either we’re going to try to have nonpartisan elections or we’re not,” the justice told his colleagues. “And if we decide that we want to just kind of assume that they will be nonpartisan and let people go out and involve the political parties, then I think 10 years from now we’re going to have elections like you do in other states.”
In other action, the council:
•Appointed Los Angeles Superior Court Judge Ronald S. Coen as the judicial member of the seven-member council that oversees California’s compliance with the Interstate Compact for Adult Offender Supervision, which governs state administration of the transfer across state lines of the supervision of adult parolees and probationers.
•Deferred action on a new voting policy under which council action at a business meeting would require the concurrence of a majority of voting members, rather than a simple majority of those present and voting at a meeting at which a quorum is present. The AOC recommended the change in response to a letter questioning whether the current policy violates Government Code Sec. 68508, which provides that “[n]o act of the Judicial Council shall be valid unless concurred in by a majority of its members.”
An AOC staff member said the section “can be interpreted reasonably in two different ways,” but that adopting the new policy would assure that votes lacking the concurrence of a majority of the whole council—a relative rarity—would not be subject to challenge.
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