There Needs to Be More Transparency in this Process
We need a new system of choosing trial judges in California. As of right now there are two methods by the California Constitution. The first are judicial elections and the second is appointment by the Governor and there are clear problems with both processes. In both instances there are retention elections afterwards, but those appear to be of little significance since almost no one knows whether they should vote to retain a judge, rendering the process mostly ineffective except in rare instances.
It appears that nearly 90% of trial judges in California are now chosen through the appointment method. Most of us who may at some point go before these judges learn about judicial appointments from the local newspapers, with a picture of the new judge informing the locality. Most people have no prior knowledge of the appointment in any meaningful way and never get any input. This is problematic, and there are likely better ways to handle this process.
Judicial Elections
Judicial elections are a relatively straightforward process. Two or more candidates run for the office, and the one with the majority of the votes wins. These vacancies generally occur just before a sitting trial judge retires at the end of their current term. The retiring judge usually alerts the community, allowing qualified individuals the option to run for the office.
This process is similar to other campaigns, such as those for the state legislature or county or city council. However, judicial candidates face unique challenges not typically encountered in other campaigns. One significant issue is raising money for judicial elections, as contributors to judicial campaigns might seek influence or special treatment in current or future litigation. Trial judges have a tremendous amount of unilateral discretion in the cases that are before them, which can make a case unfair. This substantially differs from contributions to members of the legislative branch at the state or local level. Legislative rulings are made by consensus of the majority and often face a second chamber or veto. The Supreme Court of the United States has addressed this issue (see Caperton v. Massey Coal, 56 US 868 (2009)).
Perhaps we need to be reminded that the purpose of elections is to secure the agency of those in office with the public. We are not simply choosing one of two evils, we are trying to ensure that a competitive process exists periodically so those in office need to keep that in mind.
The district for judicial candidates who run for office is generally the entire county. This might be manageable for those running in smaller northern counties with small populations, such as Butte County with over 200,000 people, Lake County with just over 65,000, or even Alpine County with just under 1,200 people. However, running an election at large in larger counties like Riverside County with just under 2.5 million people, San Diego with just under 3.3 million, or Los Angeles with around 10 million people presents significant challenges. The size of the district and the method of running needs to be considered, but currently is not.
Governor Appointments
The Appointment Process is mostly straightforward. The Governor appoints members of the judiciary and has a committee that appears to be chosen by the State Bar This is called the JNE which is established by the California Constitution (Article VI) and statute (Government Code 1211.05). It appears that the bar solicits potential judges from lawyers who live in a community, vets potential appointments, and then recommends the prospective judge.
The main problem with this process is the public is not informed of who is being considered and who is on the committee because both are not disclosed to the public and there are penalties for disclosure of any information at all.
All communications, written, verbal, or otherwise, of and to the Governor, the Governor’s authorized agents or employees, including, but not limited to, the Governor’s Legal Affairs Secretary and Appointments Secretary, or of and to the State Bar in furtherance of the purposes of this section are absolutely privileged from disclosure and confidential, and any communication made in the discretion of the Governor or the State Bar with a candidate or person providing information in furtherance of the purposes of this section shall not constitute a waiver of the privilege or a breach of confidentiality.” California Government Code 12011.5 (f)
There is no point in which potential judges are publicly announced that they are being considered. There is no point in which the public gets to give any input. The results are simply announced and we are told who our new judge is. No one should have confidence in this process.
Judicial Privacy in California Is a Problem
In theory, in a democratic government, we choose our leaders, and they, in turn, write laws that we observe with our input if we choose to participate. We can petition legislative bodies and witness the debates our representatives engage in on these topics. The courts are an integral part of this system. They apply the laws once passed by the legislative process and should be no less transparent. However, in California, this is not the case, and there is a significant problem due to this lack of transparency, which undermines our democratic institutions. Californians have even passed a referendum changing the constitution to presume that government information is accessible to the public:
California Constitution Article I section 3(b)
(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.
Not only is the selection process of the judiciary under wraps, but the oversight process is as well. The Commission on Judicial Performance (CJP) was established decades ago to take complaints about the actions of judges who abuse their office and powers. The process the CJP goes through in accepting and reviewing these petitions is also secret. This came to light a few years ago when the first-ever audit was conducted on this agency. The agency itself even sued to enjoin the audit. One activist who was key in pushing for the audit of the CJP was handed a 25-day jail sentence days after the audit was announced. To most, it looked like retaliation, done by a judge who himself had five sustained complaints.
The review of the CJP by State Auditor Elaine Howell opened with the statement: “Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist.” As taxpayers who fund the activities of this agency, we should not be experiencing this. The results of the audit can be viewed here: 2016-137—Commission on Judicial Performance: Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist
And it follows that the codes that keep the judicial vetting process secret should be struck down and the debate on whether someone should be placed on the bench to administer the laws should be robust. Codes such as this should not exist:
A Better Judicial Selection Process
First, the judicial election process should be left in place with some minor changes. The fact that California’s judicial elections are non-partisan is probably good. The biggest and most needed change would be for judges to run from single-member districts within each county rather than at large. This would make the districts smaller, lower the cost of elections (and money less important), make the races more competitive, and hold the election in a community that is meaningful to both the judge and the persons they represent and acts on the behalf of. For example, in a hypothetical county with 250,000 people and 10 judges, rather than judges being elected by the whole county, they would be given specific districts with 25,000 people.
Second, the appointments process should, for simplicity and uniformity, follow the federal model where nominations are made by the Governor with the advice and consent of the California state senators. This would make the process more transparent and less secretive. Anyone picked by this process would be open to public questioning by senators of both parties, with the answers made part of the public record. This way, the process from selection to actual appointment can be tracked and witnessed. Newly appointed judges would not simply be thrust upon the public with the turn of a newspaper page, and more of us could have confidence that those chosen are vetted. It would also bring our senators into public view and would allow minority party members to ask questions that could upend a nomination. Also, members of the public with information on the past actions of the persons considered for judicial appointments can be brought to light before we put an unqualified person on the bench.
There are sitting judges across California who might not have their seats if this process were in place. This should be considered, as many of us have to go to court, and the judicial officers and their fairness are unknown to most of us until we are before them. That should not be the case. This process would be more legitimate and judiciary more suited to us.
