A challenge to sitting judges — and the secretive judicial system

Four public defenders take on the entire political and judicial establishment in an effort of bring reform to the courts

Judges don’t like elections. That’s been true in San Francisco for decades, and it’s true in most of the rest of the country. The people who sit on the Superior Court generally agree that they should be appointed by the governor, accountable to nobody, and never have to face the voters.

I have heard judges tell me over and over again: The independence of the judiciary requires that judges be above politics. If they have to run for office, then they have to raise money, and go get endorsements, and the donors and supporters may have cases before them. And if judges have to face the voters, who don’t understand the complexity of some judicial decisions, they may be forced to defend their, well, judgement.

Kwixuan Maloof, Niki Solis, and Maria Evangelista, along with Phoenix Streets, are running for judge

There are some good arguments here; politics is messy, and special interests can have huge influence. Rose Bird, who was possibly the best chief justice of the Supreme Court in California history, was tossed out of office by the voters in 1986 after a corporate campaign that wrongly attacked her over the death penalty. (I was around for that; Bird refused to fight back, and the supporters of all the causes she helped — including labor — didn’t get it together to defend her.)

That said: Superior Court judges in California are, under the state Constitution, elected officials. But you hardly ever see any elections for judge.

That’s because the Constitution has a loophole: If a judge retires or steps down in the middle of their term, then the governor appoints a replacement. And unless someone files to challenge a sitting judge, they never appear on the ballot.

That’s why you probably don’t know who the 51 judges on the SF Superior Court are (unless you’ve appeared before one of them). They rarely go to community events; I’ve never heard of a judge holding an open-house or public forum where people (other than fellow lawyers) can meet them and give feedback on the justice system.

Every once in a while, a judge will actually retire at the end of their term, and there will be an election for an open seat. But that’s rare.

Which means if you are a lawyer in California, and you want to become a judge, your only real hope is to do a different type of politics: You have to suck up to the governor and his allies.

And governors, when it comes to appointing judges, are consistently conservative.

In the past 30 years, under both Democrats and Republicans, only one person has ever been appointed to the SF bench from the Public Defender’s Office. Governors typically appoint either prosecutors or people from big corporate law firms (who have given the governor money or otherwise have high-level political connections).

So becoming a judge is a political process; it’s just one that doesn’t involve the voters. Which is why the SF bench is considerably more conservative than the SF body politic.

And when somebody dares to challenge this overall philosophy, that judges shouldn’t be elected, the entire judicial and political system comes down on them.

That’s what’s happening to four deputy public defenders who, frustrated by a pro-prosecution bias among local judges and their inability to get through the impenetrable process of seeking an appointment from the governor, have dared do what the Constitution allows – and filed to challenge incumbent judges.

The four have all challenged incumbents who were appointed by Republicans, either Arnold Schwarzenegger or Pete Wilson. They are running, they told me, because they want to bring a different perspective to the bench.

“Judges never go into the community,” Niki Solis, one of the candidates, told me.

“Judges are talking to the politicians,” Maria Evangelista, also a candidate, told me. “We are taking the vote to the people.

Kwixuan Maloof and Phoenix Streets are joining them in the challenge.

Public Defender Jeff Adachi, their boss, told me that he never asked the four to run for judge. “I am not behind this,” he said, “But I support it. People who spend their careers representing indigent defendants bring a different perspective to the bench, and it’s missing.”

The shit has already come down. The justices of the Supreme Court mysteriously refused to attend a regular luncheon because Adachi was a speaker. The leading Democrats who represent SF in Sacramento are supporting the incumbents.

One of the judges who is being challenged is Curtis Karnow, who issued what some say is one of the worst anti-tenant rulings in years. The others are Cynthia Ming-mei Lee, Andrew Cheng and Jeffrey Ross.

But let’s forget Karnow’s ruling on rent control for a moment. He made a ruling I agreed with in the City College case. I can accept the argument that second-guessing judges on these things can get tricky.

The larger question the challengers have raised is whether it’s time to break up the insider, closed-door, secret fraternity system that is judicial California.

Should the voters have a larger role in the judicial system? Should judges have to meet with the community every once in a while to explain how they are doing their jobs? Or is that a recipe for over-politicizing justice?

Is there something wrong with a judicial appointment system when lots of prosecutors get to be judges, but public defenders are systematically excluded?

And is there any way, other than this sort of challenge, that the system can be changed?

Judges who are running for office can’t answer a lot of the questions that political groups want to ask. The four public defenders can’t say that they would rule differently from Karnow on rent control. They can say that the current direction of criminal justice is wrong.

“I’ve been frustrated by the intransigence of judges,” Solis told me. “I’ve been frustrated by bail reform.”

Adachi’s office has tried repeatedly to get local judges to abandon the ancient process of cash bail, which allows the rich to go free while the poor sit behind bars (and encourages defendants to accept plea bargains for crimes they didn’t commit just so they can get out of jail and back to work and their families.)

But the local bench has not co-operated. “They denied 90 straight release motions,” Solis said.

“I want to stop crime,” Evangelista said. “We need to come up with creative solutions.”

They can also talk about the administration of the courts, which has long been a source of huge frustration to journalists.

Very few local judges allow cameras in the courtroom. Most still follow the ancient practice of forbidding recording devices; if a trial is public, what possible reason is there to prevent a reporter from recording the proceedings to get the quotes right?

We all agree that there are times when no cameras should be present; not one of the journalists in the Zarate trial ever challenged the judge’s admonition that jurors should not be named, photographed, or even drawn by a sketch artist. That was a case that had the potential to create death threats from the Trumpians; secrecy made sense.

Same goes for juvenile cases, cases where there are witnesses testifying against killers … we get that.

But 90 percent of more of the cases in Superior Court involve no issue that would prevent a camera or recording device.

And I can think of no good reason why the operations of the courts are so deeply secretive.

The presiding judge of the Superior Court wields considerable power. That person decides which judges go where – who is stuck in traffic court and who gets to handle felony criminal cases. The last time I checked, the presiding judge was elected by the members of the bench – in a secret, paper-ballot election. Nobody knows who supported whom.

The judges meet regularly to discuss court operations; budgets, assignments, etc. Those meetings are closed to the press and public. No reason; they just are.

The three candidates I met with — Evangelista, Maloof, and Solis — all said they would open those meetings to the public.

In the Zarate case, Judge Samuel Feng presided over a tiny courtroom; members of the public who wanted to watch a nationally significant trial had to go through a lottery to get a seat. Why was Feng, who ruled consistently in favor of the prosecution, assigned that case? Why wasn’t that trial moved to a larger courtroom? Why no video feed to an overflow room (or live coverage from a camera that didn’t show the jurors?)

Nobody knows. It’s all a big secret. The judges answer to no one.

“We need to reform our bail system and I think the judiciary needs to be part of that,” Adachi said. ” I’m ashamed that a recent report shows that African Americans are arrested and prosecuted at 10 times the rate of their white counterparts for drug crimes when the statistics show that white San Franciscans are 60% of those using and abusing drugs.

“If we care about criminal justice reform, we have to care about how our judiciary addresses the wide disparities.  Why are bails set for African Americans defendants held in custody on average 30 days longer and their sentences 28% higher than their white counterparts? Why are they charged with more serious crimes than white defendants?”
 
“We need to bring attention to basic fairness in our court system. What responsibility does the judiciary have for these unjust outcomes?” 
 

All four of the public defenders on the ballot have long records that would qualify them for office. They all have been litigators for more than a decade; they have done hundreds of trials. Evangelista has been in the PD’s Office for 14 years; she has twin four-year-olds. Maloof is a native San Franciscan who also has two kids and has been a public defender for 20 years. Solis was an undocumented immigrant in her teens who wound up going to law school and spending her career “protecting the most vulnerable.”

The incumbents all have equally distinguished records. 

But the PDs have zero chance of becoming judges in the current system – although prosecutors and corporate lawyers with less experience have the inside line on the courts.

That’s what this election is really about: You can support the incumbents, or the challengers, and you can argue about the independence of the judiciary. There’s a good case for all sides. 

But the judicial system that exists today has a lot of problems – and maybe this campaign, however it ends, will bring some of them to light.