SUMMARY: Campaign materials from a candidate for Superior Court judge in Riverside County claim that he is “Law Enforcement’s Choice. Irrespective of whether such claims are accurate, they still raise disturbing questions about whether the candidate, if elected, can impartially fulfill the judicial function. Judges need to be impartial if the public is to have any confidence at all in the justice system. Nothing is more frustrating to cops or crime victims than to see a good collar go south because the judge didn’t preside impartially over a criminal trial.
By: Paul S. Marchand
Normally, watching a judicial retention election in California is about as exciting as watching paint dry.
Not this time.
At least not in Riverside County, where a number of sitting judges are being challenged. The campaign materials for one of the challengers declare that he is “Law Enforcement’s choice” for the bench. Without reaching the issue of whether the candidate’s claims can withstand factual scrutiny ---a doubtful proposition at best--- such claims ought to be cause for grave concern.
In California, judges must stand for retention at the first general election after which they are appointed to the bench, and every six years thereafter. Usually, the whole process is a quiet one, and it is unusual for a jurist not to prevail in a retention election.
Indeed, so exceptional is it for a judge not to be retained that such elections become news. In 1978, in part of the same voter upheaval that saw the passage of proposition 13, a well orchestrated conservative campaign was able to secure the removal of then-Chief Justice Rose Bird, and Justices Joseph Grodin and Cruz Reynoso from the California Supreme Court.
In 2006, to the shock and surprise of just about every judge, attorney, and court-junkie in Los Angeles County and throughout the state, a relative unknown named Lynn Olson, a non-practicing lawyer running a bagel shop, knocked off Judge Dzintra Janavs, a highly experienced jurist who had been rated “exceptionally well-qualified” by the Los Angeles County Bar Association. Like many other attorneys who had appeared in front of Judge Janavs, I can attest that what she didn’t know about Writs and Receivers probably wasn’t worth knowing.
Though Judge Janavs was promptly appointed by then-Gov. Arnold Schwarzenegger to a new open judgeship, and though Ms. Olson has actually learned her craft well enough to become a somewhat effective jurist, the whole affair raised disturbing questions about the extent to which the judicial retention process can be skewed by inappropriate considerations.
Thus, when I saw campaign materials for one of the judicial challengers in the upcoming retention election, I was more than a little disturbed by the bald claim that the challenger in question represents “Law Enforcement’s choice.”
You don’t have to be an attorney --- or have served, as I have done, as an independent neutral yourself --- to find such an assertion out of character for what a judge ought to be. I think most of us would be extremely offended, for example, to see campaign materials touting a candidate for judgeship as “The Insurance Industry’s choice,” or “The Plaintiffs’ Personal Injury Attorneys’ choice,” or “Big Pharma’s choice,” or “the Criminal Defense Bar’s choice.” We would rightly question whether any such candidate could be a truly impartial, independent neutral.
Because in a justice system that depends for its viability upon a public perception that judges will decide the cases before them impartially on the basis of the law and the evidence in the case, nothing could be more dangerous to public confidence in the system than the idea that a particular jurist entertains a predisposition in favor of a certain class of litigant, whether that be a PI plaintiff, an insurance company, a drug company, a criminal defendant, or even the prosecution in a criminal case.
By: Paul S. Marchand
Normally, watching a judicial retention election in California is about as exciting as watching paint dry.
Not this time.
At least not in Riverside County, where a number of sitting judges are being challenged. The campaign materials for one of the challengers declare that he is “Law Enforcement’s choice” for the bench. Without reaching the issue of whether the candidate’s claims can withstand factual scrutiny ---a doubtful proposition at best--- such claims ought to be cause for grave concern.
In California, judges must stand for retention at the first general election after which they are appointed to the bench, and every six years thereafter. Usually, the whole process is a quiet one, and it is unusual for a jurist not to prevail in a retention election.
Indeed, so exceptional is it for a judge not to be retained that such elections become news. In 1978, in part of the same voter upheaval that saw the passage of proposition 13, a well orchestrated conservative campaign was able to secure the removal of then-Chief Justice Rose Bird, and Justices Joseph Grodin and Cruz Reynoso from the California Supreme Court.
In 2006, to the shock and surprise of just about every judge, attorney, and court-junkie in Los Angeles County and throughout the state, a relative unknown named Lynn Olson, a non-practicing lawyer running a bagel shop, knocked off Judge Dzintra Janavs, a highly experienced jurist who had been rated “exceptionally well-qualified” by the Los Angeles County Bar Association. Like many other attorneys who had appeared in front of Judge Janavs, I can attest that what she didn’t know about Writs and Receivers probably wasn’t worth knowing.
Though Judge Janavs was promptly appointed by then-Gov. Arnold Schwarzenegger to a new open judgeship, and though Ms. Olson has actually learned her craft well enough to become a somewhat effective jurist, the whole affair raised disturbing questions about the extent to which the judicial retention process can be skewed by inappropriate considerations.
Thus, when I saw campaign materials for one of the judicial challengers in the upcoming retention election, I was more than a little disturbed by the bald claim that the challenger in question represents “Law Enforcement’s choice.”
You don’t have to be an attorney --- or have served, as I have done, as an independent neutral yourself --- to find such an assertion out of character for what a judge ought to be. I think most of us would be extremely offended, for example, to see campaign materials touting a candidate for judgeship as “The Insurance Industry’s choice,” or “The Plaintiffs’ Personal Injury Attorneys’ choice,” or “Big Pharma’s choice,” or “the Criminal Defense Bar’s choice.” We would rightly question whether any such candidate could be a truly impartial, independent neutral.
Because in a justice system that depends for its viability upon a public perception that judges will decide the cases before them impartially on the basis of the law and the evidence in the case, nothing could be more dangerous to public confidence in the system than the idea that a particular jurist entertains a predisposition in favor of a certain class of litigant, whether that be a PI plaintiff, an insurance company, a drug company, a criminal defendant, or even the prosecution in a criminal case.
Every party before a court needs to have some sense that he or she will have a fair trial.
In recent years, for example, the United States Supreme Court has taken two significant body blows to public confidence in its integrity. In 2000, the Court was widely, and justly, condemned for awarding the presidential election to its preferred candidate in Bush v. Gore, and its more recent decision in Citizens United v. FEC has brought more popular obloquy upon it than perhaps any decision the Court has rendered since Dred Scott.
So when a judicial candidate declares, or allows others to declare on his behalf, that he is “Law Enforcement’s Choice,” we may justifiably express concern on two counts. First, will such a judge be able to give a criminal defendant the fair trial that our system considers critical? Second, will such a judge be able to overcome a predisposition in favor of institutions over individuals? Such a concern is particularly appropriate in civil cases involving, for example, wrongful termination or workplace harassment.
Here in Riverside County, there has been an unfortunate history of prior District Attorneys tending to view our Superior Court as nothing more than an obedient adjunct of the District Attorney’s office. Not only did this create potential fairness and due process issues for criminal defendants, but it also had the effect of making it difficult for civil litigants to have their day in court. On two occasions in the last decade, for example, moratoria on civil trials had to be declared in order to clear up a hugely clogged backlog of criminal trials. We all understand that criminal trials take priority, nevertheless, at some point a civil litigant needs to have his or her day in court, too; even in civil cases, justice delayed is justice denied.
Now some may find my concerns frivolous, or even “socialist.” Some may seek to misrepresent my views as some kind of attack on law enforcement. Some may claim, equally falsely, that I am seeking to insult the court of which, as an attorney, I am an officer, and some may try to claim that I am seeking to undercut the First Amendment rights of candidates for judicial office.
Nothing could be further from the truth. Indeed, having worked with law enforcement during my tenure as an elected public official ---and having been the victim of crime--- I know how critical it is for both cops and courts and crime victims that if a suspect is apprehended, tried, and convicted, the conviction be the result of a manifestly fair and impartial trial. Nothing is more frustrating to a cop --or causes more anguish to a crime victim-- than to have a good collar go south because the trial judge failed to preside impartially, and instead took on the function of a super-prosecutor.
So, while an aspiring judge may want to brand him or herself as “Law Enforcement’s Choice,” he or she should probably refrain from doing so, notwithstanding his or her abstract First Amendment right in the matter.
In recent years, for example, the United States Supreme Court has taken two significant body blows to public confidence in its integrity. In 2000, the Court was widely, and justly, condemned for awarding the presidential election to its preferred candidate in Bush v. Gore, and its more recent decision in Citizens United v. FEC has brought more popular obloquy upon it than perhaps any decision the Court has rendered since Dred Scott.
So when a judicial candidate declares, or allows others to declare on his behalf, that he is “Law Enforcement’s Choice,” we may justifiably express concern on two counts. First, will such a judge be able to give a criminal defendant the fair trial that our system considers critical? Second, will such a judge be able to overcome a predisposition in favor of institutions over individuals? Such a concern is particularly appropriate in civil cases involving, for example, wrongful termination or workplace harassment.
Here in Riverside County, there has been an unfortunate history of prior District Attorneys tending to view our Superior Court as nothing more than an obedient adjunct of the District Attorney’s office. Not only did this create potential fairness and due process issues for criminal defendants, but it also had the effect of making it difficult for civil litigants to have their day in court. On two occasions in the last decade, for example, moratoria on civil trials had to be declared in order to clear up a hugely clogged backlog of criminal trials. We all understand that criminal trials take priority, nevertheless, at some point a civil litigant needs to have his or her day in court, too; even in civil cases, justice delayed is justice denied.
Now some may find my concerns frivolous, or even “socialist.” Some may seek to misrepresent my views as some kind of attack on law enforcement. Some may claim, equally falsely, that I am seeking to insult the court of which, as an attorney, I am an officer, and some may try to claim that I am seeking to undercut the First Amendment rights of candidates for judicial office.
Nothing could be further from the truth. Indeed, having worked with law enforcement during my tenure as an elected public official ---and having been the victim of crime--- I know how critical it is for both cops and courts and crime victims that if a suspect is apprehended, tried, and convicted, the conviction be the result of a manifestly fair and impartial trial. Nothing is more frustrating to a cop --or causes more anguish to a crime victim-- than to have a good collar go south because the trial judge failed to preside impartially, and instead took on the function of a super-prosecutor.
So, while an aspiring judge may want to brand him or herself as “Law Enforcement’s Choice,” he or she should probably refrain from doing so, notwithstanding his or her abstract First Amendment right in the matter.
That one can do a thing does not mean that one should do a thing.
The positions one takes or the pronouncements one makes can, and do, cause people to draw conclusions about one’s fitness for the bench:
“Watch your thoughts, for they become words.
Watch your words, for they become actions.
Watch your actions, for they become habits.
Watch your habits, for they become character.
Watch your character, for it becomes your destiny.”
I won't be supporting the judicial candidate who is somebody's particular “choice;” instead, I’ll be supporting the candidate who will be everybody’s impartial jurist.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California, where he served two terms on the Cathedral City City Council. In more than 20 years as an attorney, he has appeared in front of all manner of state and federal judges, and has himself served as an independent neutral. He believes that the best jurist isn't necessarily the one who rules in your favor all the time, but the one who gives both sides a fair chance to make a case, and who favors neither. "'Tis better to lose before a fair judge than to win before a venal one." The views and opinions set forth herein are his own, and not necessarily those of any entity or organization with which it is associated, and are not intended to constitute, and should not be construed as constituting, legal advice, though he always remembers advice from then-U.S. District Judge Allan Sharp of the Northern District of Indiana: "Never interrupt the Article III judge when he's talking."
“Watch your thoughts, for they become words.
Watch your words, for they become actions.
Watch your actions, for they become habits.
Watch your habits, for they become character.
Watch your character, for it becomes your destiny.”
I won't be supporting the judicial candidate who is somebody's particular “choice;” instead, I’ll be supporting the candidate who will be everybody’s impartial jurist.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California, where he served two terms on the Cathedral City City Council. In more than 20 years as an attorney, he has appeared in front of all manner of state and federal judges, and has himself served as an independent neutral. He believes that the best jurist isn't necessarily the one who rules in your favor all the time, but the one who gives both sides a fair chance to make a case, and who favors neither. "'Tis better to lose before a fair judge than to win before a venal one." The views and opinions set forth herein are his own, and not necessarily those of any entity or organization with which it is associated, and are not intended to constitute, and should not be construed as constituting, legal advice, though he always remembers advice from then-U.S. District Judge Allan Sharp of the Northern District of Indiana: "Never interrupt the Article III judge when he's talking."
