Wednesday, November 2, 2016
JEEC Is Not Comprised of Members Meeting the Prime Criterion
By ROGER M. GRACE
The Rules of Procedure for the Los Angeles County Bar Association’s Judicial Elections Evaluation Committee (“JEEC”) includes a mandate that LACBA’s president “shall appoint as members lawyers of high repute and professional standing” who are willing to put in the necessary time.
This observation is added:
“It is desirable that a broad cross-section of the Bar be represented on the Committee, including women, minorities, public officials, such as district attorneys and public defenders, and lawyers practicing in small, medium and large law firms.”
Courtroom experience is also deemed “desirable.”
Last year’s president, Paul Kiesel, was so much a slave to the cause of diversity (an obsession of his) that he blithely ignored the mandatory language that appointees be of “high repute.”
While faithful application of the prescribed “high repute” standard might well eliminate persons from the panel who have the capacity to interview, investigate, and ably size up strengths and deficiencies of judicial candidates, and who know what qualities are needed in judges, it remains that the standard exists, and is not being met.
Moreover, adhering strictly to that standard, under-inclusive as it is, would be more apt to result in committee findings that are creditable than spurning it, and making appointments simply for the sake of including a representative of every conceivable group. That proposition is borne out by the lopsided evaluations this year (those ratings having been discussed in this space yesterday).
In examining the roster of the 28 Kiesel-appointed members, I recognize only two names. You might want to take a look, yourself, at the list on the LACBA website and see if you can identify more than that number.
A former LACBA president tells me of an inability to recognize “any of them” and says that while heading the organization, some years back, “we [were] very careful with these appointments” to JEEC.
I contacted other leading attorneys.
One of them says:
“My quick look at the LA ABOTA [the Los Angeles chapter of the American Board of Trial Advocates] membership doesn’t seem to include any of them but even ABOTA membership [doesn’t] mean that much anymore—Kiesel was voted in last year.”
“Wonder how many do or do not have high rating with Martindale?”
I checked. Two of the 28 have Martindale Hubbell peer ratings, and they are AV (the highest). Those so rated are the JEEC chair, complex litigation attorney Jerrold Abels, and workers’ compensation attorney Sherry E. Grant.
Yet another leading attorney recognizes only one of the names on the roster and remarks:
“This is just another LACBA mystery. The names on the list are probably buddies of some LACBA ‘official(s).’”
Membership in ABOTA and a high Martindale Hubbell rating are obviously not requirements of JEEC membership, but are indicative of “high repute”…though surely not the only indicators of that status.
“The preponderance of the membership” of the 1982 panel “was said to possess broad litigation experience and knowledge concerning those characteristics and attributes required for judicial office,” according to then-California Supreme Court Justice Armand Arabian’s 1984 opinion in Botos v. Los Angeles County Bar Assn.
In a June 18, 1986 letter to the editor of the Los Angeles Times, LACBA President Charles S. Vogel and JEEC Chair Donald M. Wessling (of O’Melveny & Myers) declared that the committee was “composed of distinguished practitioners” in large firms and small, in various types of practice.
LACBA presidents, while achieving the “cross-section” goal, did place lawyers on JEEC who were, in fact, of “high repute,” possessed of “broad knowledge,” and “distinguished.”
(Many of those mentioned below are now deceased; to avoid cumbersomeness in identifications, they are not so designated.)
Members in the early days included the likes of Clarence S. Hunt, Laurie Levenson, Vincent W. Thorpe, Howard Weitzman, Richard R. Rogan, Connolly Oyler, Timi Hallem, Robert C. Baker, Manual Hildalgo, Nowland C. Hong, Ellis Horvitz, Joan Patsy Ostroy, Ian Herzog, Roy Weatherup, John Sturgeon, Pierce O’Donnell, Karl Seuthe, Patrick R. Dixon, Ned Good, Michael Marcus, Mallisa McKeith, Marshall Oldman, Bill Tan, Kevin Brogan, Molly Munger, Christopher Bisgaard and Lee Kanon Alpert. These are just some of the names that jumped out at me in glancing at reports from 1978-92 of what is now known as JEEC.
(Prior to 1976, it was termed the “Special Committee on Judicial Evaluation,” then becoming the “Judicial Evaluation Committee,” next the Judicial Election Evaluations Committee, now the Judicial Elections Evaluation Committee.)
The 1978 committee included former Pasadena Municipal Court Judge Warren Ettinger, future Los Angeles Superior Court Presiding Judge Victor Chavez, and three other future members of that court—Richard Fruin, David A. Horowitz, and Charles Vogel, with Vogel going on to become a Court of Appeal presiding justice…and who along the way served as president of LACBA and the State Bar. (Among others on the 1978 panel were attorneys Thomas F. Coleman, an author and gay activist who, for a spell, was a MetNews staff writer, and Betty Tom Chu, later a Monterey Park mayor and a bank president.)
In 1980, there were mostly the same members. Joining the raters that year was Florence-Marie Guzman. Her last name was soon after changed to Cooper, and she became a judge of the Los Angeles Superior Court and later the U.S. District Court for the Central District of California. Also joining was Marjorie Steinberg, who also went on to become a judge of the Los Angeles Superior Court. Another new face on the panel was that of Robin Meadow, who was to become a LACBA president.
Committee members from 1982-92 who became LACBA presidents were Gerald Chaleff, Roland Coleman, Rex Heinke, Alan Steinbrecher, John J. Collins, and Lee S. Edmon (later a Los Angeles Superior Court presiding judge, now a Court of Appeal presiding justice), as well as former Los Angeles Municipal Court Judge Sheldon Sloan and David Pasternak, who were both to serve as presidents of the State Bar.
Future judges among the 1982-92 JEEC members, in addition to Edmon, were Victoria Chavez, a current member of the Court of Appeal for this district; William A. Masterson, who was to sit on the Court of Appeal here; U.S. District Court Judge George King of the Central District of California; and Los Angeles Superior Court Judges J. Stephen Czuleger (who has served as presiding judge), Lance Ito, Charles D. Sheldon, William W. Huss, Daniel Pratt, Joseph Di Loreto, Andria Richey, Kenji Machida, Meredith Taylor, Gregory Alarcon, Lisa Lench, Stanley Weisberg, and Michael Mink—as well as others I’m bound to have missed.
It might well be that one or more of the 28 members of the 2015-16 JEEC brigade will become a LACBA president, or a judge or justice, or reach other heights. But as to their current statuses, it simply is not realistic to say that they meet the standard set forth in the rules: enjoying “high repute.”
Aside from not meeting that standard (which is one that LACBA would do well to amend), they do not, as a body, meet any objective standard of being equipped for the task they performed. There were ratings this year that were downright balmy. The Los Angeles Times apparently agrees; it, like the MetNews, endorsed Deputy District Attorney David Berger, rated “not qualified,” over a candidate LACBA hailed as “well qualified,” Deputy Attorney General Kim Nguyen, who has never tried a case.
JEEC is diminishing in influence and credibility. The 2017-18 LACBA president, Michael E. Meyer, will face the task of making appointments to that committee with care, even recruiting persons who do not apply, in order to assure that is it composed of those with an ability to make evaluations based on a broad look at the relevant factors.
Here are some suggestions for changes in JEEC procedures:
•A major flaw in the current procedures is that each candidate is preliminarily rated by a subcommittee, comprised of a few members of the full committee. One subcommittee is bound to have higher standards than another. If a candidate does not appeal the rating, it becomes the final rating of the committee, and the committee’s evaluations automatically become those of LACBA. If an overly generous subcommittee has awarded a contestant a undeservedly high ranking, there is no mechanism for lowering it. A written report should be prepared by each subcommittee on each candidate it has rated, with the comments that have been received attached, and any member of the full committee should have the prerogative of bringing a rating into question. If a majority of the full committee were to concur, an appeal would be triggered, with the candidate being requested to appear for questioning by the full committee, just as where a candidate instigates an appeal of his or her rating.
•The JEEC Handbook provides: “A subcommittee will not, unless mandated by the number of candidates involved in a particular race, investigate more than one candidate for a particular race.” This strikes me as backwards. Given that the prevailing expectations of candidates for judicial office will inevitably vary from panel to panel, it would be more equitable for each candidate in a given race to be evaluated by the same panel. There is the possibility of one candidate being downgraded in order to give an advantage to a favored candidate, but if JEEC members are selected with care, this prospect of corruption would be remote, while the prospect of rival candidates facing different degrees of scrutiny, under the present system, is quite real.
•LACBA should revert to its original procedure of telling why a candidate has been rated not qualified. Some deficiencies—such as currently lacking adequate legal experience—can be cured; others, such as bad judgment or dishonesty, can’t be.
•A candidate in 2012, Joe Escalante, was asked what LACBA rating he anticipated receiving, and queried: “Is there an ‘extremely unqualified’?” There isn’t, but perhaps there should be more than one rating that is lower than “qualified.” There are two levels above “qualified”: “well qualified” and “exceptionally well qualified”; in schools, there are two marks below a “C”: “D” and “F.” It would make sense to create a rating of “not presently qualified”—which would be apt in the case of Nguyen—and “not qualified,” which describes Escalante.
•LACBA should not engage in the future in the practice of publicizing its ratings in general election run-offs, on a side-by-side basis, and suggesting the “guides” be taken into the polls, thus creating the equivalent of a slate mailer. Release the report in the primary; consider the task completed.
Copyright 2016, Metropolitan News Company