Judicial Nomination Process Is a Downhill Run

Thursday, June 27, 1996

Page 8

IN MY OPINION
Judicial Nomination Process Is a Downhill Run

By ARMAND ARABIAN

(The writer is a retired justice of the California Supreme Court.)

Many of you will recall 1979, the war between Lt. Gov. Mike Curb, a Republican, and Gov. Edmund G. Brown Jr., a Democrat, over the constitutionally delineated powers of the governor's office when the governor was "absent from the state." Curb nominated me, then a judge of the superior court, as presiding justice of the court of appeal during a time when Gov. Brown, was in Washington, D.C. testifying about the sophio pipeline. After the news of Curb's activity reached his ears, Gov. Brown flew back to the state and withdrew my nomination.

Swords were drawn and a lawsuit was filed to settle the question of gubernatorial powers.

At year's end, when In Re the Governorship was decided by the California Supreme Court, the rescission was allowed to stand but Curb could wield full powers of the office every time Brown left the state.

To eliminate Curb's political agenda and ability to fill judicial vacancies, the Legislature, driven by Assemblyman Leo McCarthy, codified judicial review activities by enacting Government Code Section 12011.5, which required the governor to submit names of all prospective nominees to a newly created Judicial Nominees Evaluation Commission. Section 1 1979 c. 534 stated:

"It is the intent of the legislature in enacting this act to assist the governor in the evaluation of appointees or nominees to judicial office by providing the governor with as much information and valued judgment regarding the judicial qualifications of a candidate as is possible prior to the time such appointment of nomination takes effect. It is the further intent of the legislature to preserve the confidentiality of information gathering and evaluation procedures for the purpose of ensuring the ability of the State Bar to assist the governor by making the fullest investigation possible concerning the qualifications of a candidate for judicial office and in order to encourage persons to come forward and provide information without fear of legal reprisal or other consequences for their candid expression of views and comments concerning the qualifications of any candidate. It is also the intent of the legislature to encourage members of the State Bar and sitting judges to be available for judicial appointment without undue risk of attendant publicity from surprise adverse criticism after an appointment to judicial office is made."

The section provides that within 90 days of submission of the name of a potential appointee, the State Bar shall report its recommendation in confidence to the governor. No candidate may be appointed until the report is issued or until 90 days after submission of the name. Ultimately it allowed Gov. Brown's political agenda and liberal ideology to withstand any internal assault by Lt. Gov. Curb. Successor governors have acquiesed in this assertion of State Bar opinion.

Although never challenged in court, these requirements facially violate the governor's unfettered power of appointment under subdivision (d) of section 16 of article VI of the California Constitution.

Apparently troubled by this invasion into gubernatorial responsibilities, the following language was inserted by the drafters.

"(1) Nothing in this section shall be construed as imposing an additional requirement for an appointment or nomination to judicial office, nor shall anything in this section be construed as adding any additional qualifications for the office of a judge."

In retrospect, this was a pure unadulterated use of smoke and mirrors and an effort to deflect criticism and analysis. It worked for 16 years.

Then, the debacle. the confirmation hearing of Justice Janice Rogers Brown to the California Supreme Court resulted in the formation and appointment of two committees of the State Bar which are charged with heretofore unprecedented responsibilities.

First, Harry W. Low, a retired justice of the Court of Appeal, has been named chair of a special investigation committee whose narrow charge is limited to the statements made by Ms. Rita Gunasekaran, chair of the Commission on Judicial Nominees Evaluation, during the May 2, 1996 public hearing before the Commission on Judicial Appointments. They are also to investigate and determine if any State Bar representative was responsible for the unauthorized disclosure of information to the Los Angeles Times of the confidential evaluation rating and report regarding Justice Brown. The Los Angeles Times, sole recipient of the private report, carried forth the effort by printing three front page stories and an editorial opinion.

The first task of the investigators should be relatively simple. The clear rule of confidentiality under Section 3 of Rule III mandates no breach of silence concerning a prior unpublicized evaluation.

The colloquey at the confirmation hearing between members of the Commission on Judicial Appointments — Chief Justice Ronald George, Attorney General Dan Lungren, and Court of Appeal Presiding Justice Robert Puglia — and the chair of the JNE Commission concerning the "not qualified" rating of the commission went as follows:

GEORGE: Are you aware that for the last time, for the Court of Appeal, she was superior, is that correct?

GUNASEKARAN: That would be an incomplete answer. Can I give you the entire history, then?

GEORGE: Well, certainly the rating we'd be interested in, and anything needed to explain it, but I know in our files?

GUNASEKARAN: Because the candidate was considered initially for the Supreme Court.

LUNGREN: No, for the Court of Appeal.

GUNASEKARAN: Because we are talking about the Supreme Court, now, so the evaluations....

GEORGE: No, I'm talking, as I indicated, about the Court of Appeal [reading] "the commission has reviewed Ms. Brown's qualifications for appointment to the California third appellate district, and has found her to possess qualities and attributes considered indicative of a superior fitness to perform the judicial function with a high degree of skill and effectiveness," signed by the chair of the Judical Nominees Evaluation Commission October 26, 1994.

GUNASEKARAN: That is correct, after she was evaluated initially for the Supreme Court and found not qualified.

PUGLIA: Well, that wasn't the question that the chief justice asked you. The question the chief justice asked you was about the report of your commission relative to their report for the Court of Appeal.

GUNASEKARAN: I agree, and I said I would have to give an incomplete answer, and I assumed I had permission to give a more complete answer.

What is clear from the record is that the pressing force of advocacy to make her case for the pronounced "not qualified" rating by reaching outside the precise inquiry breached all the rules and placed the previously protected rating into the public arena. Loose lips sink ships.

This transgression was clear and is not defensible; there was no permission, no privilege, no waiver, no entrapment; as an aggressive non-responsive answer, it inflicted a deep and irreversible harm upon the nominee and the commission itself.

What can the investigators do about it? The same section states:

(1) No person or entity shall be liable for any injury caused by any act or failure to act, be it negligent, intentional, discretionary, or otherwise, in the furtherance of the purpose of this section, including, but not limited to, providing or receiving any information making any recommendations and giving any reasons therefore as used in this section, the term "State Bar" means its governing board members thereof, the designated agency of the State Bar and members thereof, and employees and agents of the State Bar.

In short, the respondent enjoys complete immunity. There are no meaningful sanctions. Justice Brown is a victim without remedy. The investigators are tigers without teeth.

The next area of inquiry, which concerns the leak of the confidential report to the L.A. Times, presents a more difficult problem. On May 17, 1996 in a speech in Los Angeles before the Federalist Society I stated: "The gang that can't shoot straight, having fired hollow point bullets, will now be pursued by blank shooters who will never hit their well hidden target. As legal observers, we will go from a blackening of character to a total whitewash."

This search well bear no fruit. So much for phase one!

On the second front, a seven member advisory committee has been named to review the operations and procedures employed by the commission. Court of Appeal Justice James D. Ward, who served on the commission from 1984 to 1987, the final year as its leader, was named chairman of the oversight group. They have a broad mandate in conducting their analysis.

They will also do their best, but knowing that the cure they yearn for is all but impossible, I am of the view that they should recommend its abolition for the following reasons.

First, as stated, I believe the statute represents an unconstitutional curtailment of the governor's powers and should never have been enacted.

Second, there are five systems throughout the U.S. for selecting state appellate judges. They are non-partisan elections, appointment by the governor and/or the legislature, appointment without merit selection, appointment with merit selection and selection by other judges. Not one state has emulated the intrusive mandatory authority of the Bar in the California paradigm. This should tell the committee something!

Third, the commission serves no purpose which cannot be fulfilled by various bar association input, a governor's judicial selection advisory board, and/or investigation by the office of the attorney general.

Fourth, throughout their history, while the word confidential or confidentiality is mentioned seven times in the subject code, breach has been the rule, rather than the exception. The L.A. Times affair simply moved these activities to a new level because the stakes were deemed high enough by the opposition.

Fifth, it is a fleecing of the fisc on a grand scale. The commission's budget for 1993-1995 was $941,383; they spent $827,232. At that rate, by the time you read this, they will have spent more than $1 million for our enlightenment and their sub par performance.

Actual travel expenses including housing and dining at hotels, such as the Clift in San Francisco, where discounted rooms bring extra luxury, have occasioned in the same three-year period the expenditure of $285,763 of Bar dues. To, date, more than a third of a million dollars for these junkets across our state. What a price to pay.

In summary, to paraphrase attorney Johnny Cochran: "If it has no use, just cut it loose." The sooner, the better.