Judging Judges

Thursday, October 2, 2003

Page 7

IN MY OPINION (Column)

Judging Judges

By DONALD W. RICKETTS

(The writer is a semi-retired attorney whose practice is now restricted to consulting on class actions. During nearly 40 years of civil litigation, he appeared in court hundreds of times before scores of judges. Portions of the material in this article are from a book in progress, The Imperial Judiciary.)

Judges are given broad discretion and, even when there is a jury, can determine the outcome of a case. If a particular ruling is discretionary, it is unlikely that an appellate court will reverse it. It is, thus, obvious that only individuals who are fair, and use their discretion wisely, should be allowed to sit as judges.

Once a California judge is appointed by the governor to fill a vacancy (caused, usually, by retirement or death) the judge must stand for election every six years (federal judges are appointed for life). Elections are intended to ensure that the bench is composed of fair individuals. But the process is ineffective because the public usually knows next to nothing about the qualifications of judges. Where a sitting judge is opposed in an election, the campaigns are usually very low key, not well publicized, receive little attention and the sitting judge is re-elected nearly 100 percent of the time, simply because he is an incumbent judge. Where a judge is not opposed, no election is held, there is no discussion about the performance and qualifications of the incumbent judge, and he or she is automatically confirmed for another six-year term.

Contributing to the lack of information available to voters on judges is the fact that virtually all information regarding them is shrouded in secrecy. Information gathered by the State Bar’s Judicial Nominees Evaluation Commission (which reviews and evaluates individuals that the governor nominates for appointment) and complaints to the Commission on Judicial Performance (which disciplines judges) are confidential and not available to the public.

Attorneys who are in court on a regular basis do gain familiarity with judges and they are the most informed source of information on their qualifications and fairness. Because attorneys may have to appear before a judge in the future who will decide the fate of their cases, few are willing to openly criticize a judge. But attorneys do, on a daily and public basis, in sworn affidavits filed with the court, express themselves on the fairness of judges in clear and unmistakable terms. Until recently, it was virtually impossible to identify and collect these affidavits and determine the consensus of opinion among courtroom attorneys on the judges that sit in the Los Angeles Superior Court and handle the most significant civil cases (“general-jurisdiction judges”).

When a civil lawsuit is filed, it is assigned to a specific judge. The parties to the action—the plaintiff, typically an individual, and the defendant, typically a business or an individual represented by an insurance carrier whose money is at stake—have the right, within a short period of time, to disqualify (“challenge”) the assigned judge, and have the case reassigned.

To disqualify a judge, the challenging party must file a sworn affidavit stating that the judge is prejudiced against the party or his or her attorney, or is prejudiced against the interests of the challenging party or attorney. The attorney must swear, under penalty of perjury, that the client cannot have a fair and impartial trial or hearing before the challenged judge.

Not all disqualifications of a judge can be regarded as reflecting on the general competence or fairness of a judge. Just as jurors are excused by attorneys for reasons that are not always apparent, an attorney can have many reasons to excuse a particular judge from a case. But when a judge is challenged many times the conclusion is that the judge is being challenged because of a widespread belief that he or she is biased or otherwise unfair. Conversely, a small number of challenges indicates that attorneys regard the judge as fair and unbiased.

A computer program developed by the Los Angeles County Bar Association now allows its members to search the Superior Court’s computerized records to see if a judge has been challenged, how many times, and by whom.

Between January 1, 2001 and June 30, 2003, more than 3,100 challenges were filed against the Los Angeles Superior Court judges who handle the most significant civil cases. The average number of challenges filed against each of these judges was 23. Fifty-two were challenged fewer times than the average and 36 were challenged more often than the average. Of the latter, 15 judges were challenged 50 or more times and five were challenged in excess of 85 times each. Thus, although these 15 judges comprise only 17 percent of all challenged judges, they accounted for 44 percent of the total disqualifications filed.

If one accepts 50 challenges as sufficient to establish that a judge is unfair, only a small minority of the civil, general jurisdiction Los Angeles judges can be so regarded, a testament to the quality of the Los Angeles Superior Court.

The most disqualified sitting judge in Los Angeles County, with in excess of 350 challenges during the period, is Ronald Sohigian, who sits downtown in the main courthouse. The challenges against Judge Sohigian come from a broad spectrum of plaintiffs, defendants, individuals and special interests. Judge Sohigian was appointed to the bench in 1988 by Governor Deukmejian. He last stood for election in 1996 when he outpolled the combined total of two opponents and defeated his nearest opponent by a more than 2-1 margin.

By contrast, the clear majority of challenges filed against the other four challenged in excess of 85 times—Mary Ann Murphy (148), Alan Buckner (100), David Workman (92), and Malcolm Mackey (92)—all indicated a pro-business/insurance company and anti-individual bias.

The accompanying table identifies the judges who were challenged at least 50 times each (and are still on the bench) and the number of challenges filed against them from January 1, 2001 through June 30, 2003.

Most Challenged General-Jurisdiction

Los Angeles Superior Court Judges

01/01/2001-06/30/2003

Ronald Sohigian 358

Mary Ann Murphy 148

Alan Buckner 100

David Workman 92

Malcolm Mackey 92

Richard Hubbell 70

Alexander Williams III 67

David Yaffe 66

Ernest Hiroshige 61

Jeffrey Wiatt 60

Irving Feffer 59

David Schacter 57

Aurelio Munoz 56

Dzintra Janavs 54

Fumiko Wasserman 50

[Due to a typesetting error, this column appeared in yesterday’s MetNews without the table. It is reprinted here in its entirety.]