http://www.pe.com/topstories/10002045_pe-news-judge03.html Press Enterprise, Top Stories - 3 september 2001 - BY MIKE KATAOKA Nature of politics a worry to judges : COURTS: A task force works on reforms, spurred on by nasty recent election races and a lawmaker's proposal : Judges perched behind polished hardwood and dressed in elegant black robes personify honor and dignity in the courtroom. But to reach that lofty position, some first must tromp through the down-and-dirty world of politics. Back in 1994, prosecutor Christian Thierbach defeated incumbent Judge Norman Turner, who then sued for libel, claiming that he had been smeared by false campaign statements. Turner lost the suit and left the area, while Thierbach is now presiding judge of the Riverside County Superior Court. That was a tame campaign compared with two bitterly fought judicial races last year in Northern California. A Sacramento lawyer spent $500,000 to win a job that pays $133,000 a year, and a Sonoma County judge has been formally charged with ethics violations for sending out caustic campaign mailers in a losing effort. It took a politician, of all people, to say, "Enough!" Assemblyman Joseph Nation, D-San Rafael, last December proposed a state constitutional amendment designed to take the campaigning, and the mudslinging and money-grubbing that often go with it, out of the process for choosing the state's trial court judges. Nation proposed having the state's 1,500 Superior Court judges join Supreme Court and Court of Appeal justices in being exempt from ballot opposition. Under such a retention system, the governor alone would decide who became a judge while voters would decide whether a judge remained in office beyond one term. Craig Kamansky, a Redlands judge who has endured two elections, likes the idea. But Thierbach, whose election would have been impossible had Nation's alternative been in place seven years ago, would rather not tinker with the system. Thierbach is in line with a majority of the state's judges who, in a survey, strongly opposed Nation's suggested reforms as too radical. So the lawmaker recently withdrew his amendment and deferred to a judicial task force to straighten things out. "It's better for the judiciary to solve their own problems if they can," said William C. Harrison, president of the California Judges Association and a task force member. "This (task force) is a better approach." Nation's concern about judicial elections sinking to ever lower depths is shared nationally, said Allan Ashman, a Chicago-based expert on selecting judges. Judicial selection is such a hot topic that a summit was convened in Chicago last December. The 95 participants, including California Supreme Court Justice Ming Chin, discussed ways to improve candidate conduct and voter awareness while lifting the burden of campaign financing. "If there's a trend, it's an increasing outcry from states and people involved in the process to do something about these judicial elections that are ideologically tainted and so influenced by money," said Ashman, director of the American Judicature Society's Hunter Center for Judicial Selection. An independent judiciary Many agree something needs to be done to end the hardball tactics in judicial races that undermine the courts' credibility, said Harrison, who is a Solano County Superior Court judge. "We want to make sure we come up with a better system for judicial elections with the goal of maintaining the independence of the judiciary and the integrity and dignity of judges," Harrison said. He declined to offer his personal views on what that system could be. Harrison expects the task force's recommendations to be submitted to the Judicial Council, the policy-making body of the state court system, by the end of this year. Unless someone files papers to challenge an incumbent Superior Court judge, which seldom happens, he or she is automatically re-elected to a six-year term without being included on the ballot. In March 2002, 20 of Riverside County's 48 judges and 23 of San Bernardino County's 60 judges face re-election, and few, if any, are expected to be challenged. Nevertheless, Thierbach said, voters should reserve the right to choose between a challenger and an incumbent or from multiple candidates when there is an open judicial seat. "I don't have a problem with the current system," he said. After the 1994 election, which Thierbach won with a 52 percent majority, Turner's suit was dismissed when Thierbach's statements critical of Turner's work habits were deemed to be opinions, not defamation. By then, Thierbach was accustomed to the trenches of political warfare, having made two unsuccessful runs in the 1980s for a state Assembly seat in Orange County. He said he swore off partisan politics after enduring personal attacks in the 1988 election. Asking for money Kamansky, perhaps more than any Inland Empire judge, knows how judges struggle with the political process. He has been challenged twice in his 15-year career as a San Bernardino County Superior Court judge, most recently in March 2000, when he cruised to victory with 70 percent of the vote. Kamansky said he never was comfortable with campaigning so he favors the retention-election alternative. "The fund-raising part of this is very difficult unless you're independently wealthy, and I'm not," he said. Thierbach agrees with Kamansky on that point. "The most distasteful thing in the world for me is to ask people for money," Thierbach said. Many of his campaign contributors were lawyers who subsequently appeared before him but that never proved to be a problem, he said. Kamansky said he still has not recouped $25,000 of his own money spent on his first election. That 1994 campaign, he recalled, was "a bit bitter." Judges across the country generally abhor political campaigning, said Ashman of the American Judicature Society, which works to maintain the integrity of the courts and to increase public understanding of them. "It's difficult, it's unseemly, it's distasteful, and it's also giving the judicial branch a bad image when judges have to go out and raise money for their campaigns," he said. One proposal endorsed at the Chicago summit was state-funded judicial campaigns, but as Thierbach observed, efforts to curb political spending at any level tend to go nowhere. Ashman's studies show that judges subject to retention are "overwhelmingly" retained by voters, but California had one notable exception. The late Chief Justice Rose Elizabeth Bird was ousted by voters in 1986 along with two liberal colleagues for their anti-death-penalty stance. "Rose Bird is one of the first instances of a judge targeted by an interest group," Ashman said. California's current chief justice, Ronald George, and Chin, his colleague, became targets of anti-abortion activists after the jurists voted to overturn a state law that required girls younger than age 18 to get parental permission for an abortion. George and Chin easily kept their jobs in 1998, but they had to mount expensive campaigns to do it. Political agendas Harrison said many judges were concerned that Nation's proposal would put them on the ballot, often for the first time, and make them sitting ducks for special interests who disagree with an isolated decision. Because of such political agendas at work, retention elections for Superior Court judges would not curb campaign spending, Thierbach said. "If anything, you're going to have more judges out raising and spending more money than you do now," he said. "Invariably, some group is going to come out of the woodwork, particularly against family law judges," who deal with emotionally charged divorce and custody cases. Three days before the 1994 election, Kamansky was flooded with calls asking for his views on abortion, which he declined to give citing ethical boundaries. "That is an issue we don't deal with," he said. "I was amazed that would be an issue for people in a judicial campaign." At political forums and coffees, Kamansky was more apt to be asked about the O.J. Simpson murder case, which he could not discuss, than his vision for local courts. "A lot of times, they really think you're trying to duck the issue, but they don't understand what the ethical rules really are," he said. Retention elections for Superior Court judges would weed the system of incompetent judges while allowing voters to be part of the electoral process, Kamansky said. Ashman said 18 states hold retention elections for judges, which adds an element of accountability. If voters are going to be asked to keep a judge in office, they need to know something about that judge, he said. Voter education should include judicial evaluations, Ashman said, and several states are doing just that. Such judicial qualities as integrity, impartiality, legal knowledge and administrative skills are measured through surveys of court users and passed on to the voters. Public scrutiny "is part of the job, part of being a public official," Kamansky said. "But running a dignified campaign like a judge should run is becoming more and more difficult," he said. "It's easy to slide into mudslinging." Mike Kataoka can be reached by e-mail at [email protected] or by phone at (909)-782-7560.