Sometime in the middle of last June, two interesting and seemingly disconnected events occurred. The first was a decision by the United States Supreme Court concerning the behavior of a West Virginia judge. It seems the judge, who had been elected, rather than appointed, had presided over a case in which he was called upon to make a decision involving one of his largest campaign contributors. The Supreme Court held that the judge’s behavior was improper.
More importantly for this essay, the Court went further and underscored a principle already firmly established in the judicial branch of government: judges must avoid the appearance of impropriety.
The second interesting event occurred at about the same time. Governor Arnold Schwarzenegger appointed former state Senator Chuck Poochigian to the California Appellate bench in Fresno.
Where There’s Smoke
The two events became entwined for me in September. After two months of vetting by the Commission on Judicial Nominees Evaluations (the “Jenny” Commission, so named for its initials: JNE), Senator Poochigian’s appointment came up for approval to the Commission on Judicial Performance (CJP).
The Commission on Judicial Performance consists of only three people: Ron George, the Chief Justice of the California Supreme Court, Jerry Brown, the Attorney General and, in this particular case, the Presiding Justice of the Fifth Appellate District (the bench to which Sen. Poochigian was nominated), James A. Ardaiz. The three heard testimony from a number of people for, and one person against, the nomination, and unanimously confirmed on September 25, 2009.
Opposition was stated by Geoff Kors, the head of Equality California, the statewide advocacy group on issues affecting the gay and lesbian, bi- and transgendered, communities. Geoff testified that Sen. Poochigian had demonstrated bias through his opposition to bills securing rights for the LGBT community, including bills I had authored. His testimony was largely dismissed, though it did generate a few questions to Sen. Poochigian about whether he was biased or not. Having “glared” (according to press reports) at Geoff throughout his testimony, Sen. Poochigian averred that Geoff was the one who was “biased”, and that his Armenian background made him sensitive to all minorities. He and the Attorney General then had a “good-natured exchange” in which Sen. Poochigian said he was “not a Neanderthal”, referring to the fact that Brown had said that very thing about him in their contest for Attorney General.
The Commission on Judicial Performance also heard from the Executive Director of the JNE Commission, Jon Wolff. Mr. Wolff testified that, as the CJP knew, JNE had ranked Sen. Poochigian as Not Qualified to serve. This rating, the very lowest a candidate can receive from JNE, is rarely given, but Mr. Wolff told the Commission that JNE had decided on the rating because Sen. Poochigian had not practiced law for 21 years and had neither trial nor jury experience. He did not mention input regarding potential bias.
This led the Chief Justice to excoriate the JNE Commission as being in error for not considering Sen. Poochigian’s legislative service as qualifying him for the bench, since legislators also deal with the law and several had been appointed to the bench. Mr. Wolff did not, of course, talk back to the Chief, and the few news outlets that mentioned the proceedings dutifully reported that JNE had been slapped.
The truth is a bit more interesting.
There Must Be Fire
I had been contacted by the JNE Commission last July to fill out one of their evaluation forms on Sen. Poochigian, with whom I served in both houses of the California legislature. This is not too unusual, as I had been contacted in the past to evaluate various judicial nominees, both as the President of the Los Angeles Women Lawyers’ Association and as a legislator. However, I found it interesting that they sought me out now, after my tenure as a legislator was over. I concluded they might have done so because someone was troubled by the possibility that the last question on the form, dealing with bias or the appearance of bias, might bear some relationship to the way Sen. Poochigian had performed as a legislator.
Over the last few decades, to their credit, the courts have identified the potential bias of judges as a difficult issue, and one with which they must deal. Even the appearance of bias can taint the faith the populous must have in the judiciary.
I knew from experience that Sen. Poochiaign’s votes had consistantly indicated animosity to civil rights statutes regarding gender, disability and sexual orientation.
I ranked him Not Qualified on the basis of bias and returned the form. This apparently struck JNE as interesting and they called me to make certain that I meant it. I indicated I did mean it, not out of any animosity to Chuck, but simply as a matter of fact.
I’m not certain why Mr. Wolff decided not to mention this in his testimony, since he knows the members of the Commission on Judicial Performance do not have access to the materials that led the JNE Commission to their decision. His testimony made it seem as though Sen. Poochigian’s lack of trial experience was the only reason they had found him to be Not Qualified.
If the Perceived Bias By A Practicing Attorney is Relevant to Judicial Evaluation, Why Not Legislators?
The failures of this confirmation process, as well as the criticism of JNE thrown out by the Chief Justice, lead me to conclude that the exhibition of bias by a legislator during his tenure should be considered every bit as relevant as the same demonstration of bias by an attorney or lower court judge. Legislators have virtually nothing to give but their votes, so it is precisely their voting history that establishes the record of their values and biases.
While I was in the legislature, I authored 171 bills that were signed into law, by three governors. Many of them concerned the civil rights of various groups. Here is just a small set of examples of Sen. Poochigian’s abysmal record on civil rights issues while he was in the legislature, and this is just on some of my bills which were signed. He also voted against hundreds more, authored by other legislators.
SB 1441 – DISCRIMINATION IN STATE PROGRAMS
This law expands the prohibition of discrimination in state operated or funded services, activities and programs to include actual or perceived sexual orientation and gender identity. 2006 Sen. Poochigian Voted No
SB 973 – DOMESTIC PARTNERS RETIREMENT BENEFITS
This law amends the Public Employees Retirement System (PERS), the State Teachers Retirement System (STRS), and the County Employees Retirement Act of 1937 to entitle retired members to elect to change optional retirement allowances to provide for their domestic partners. 2005 Sen. Poochigian Voted No
SB 1234 – HATE CRIMES
This measure updates and strengthens California’s hate crime statutes regarding prosecution and sentencing, and increases law enforcement training requirements regarding hate crimes. The measure creates a more easily understandable standard definition of a hate crime and ensures that victims who are targeted because of their association with a protected class are also covered by hate crime statutes. The measure also adds mosques and temples to the list of religious institutions protected against hate motivated violence. 2004 Sen. Poochigian Voted No
SB 262 – DISABLED ACCESS ENFORCEMENT
This measure addresses widespread non-compliance with California’s disabled access laws by strengthening enforcement and education regarding those access standards. 2003 Sen. Poochigian Voted No
SB 1301 – REPRODUCTIVE PRIVACY ACT
This law establishes a constitutionally sound basis for the protection of reproductive privacy rights in California by incorporating the protections set forth in Roe v Wade into California statute. 2002 Sen. Poochigian Voted No
SB 1945 – STATUTE OF LIMITATION ON HATE CRIMES (RALPH ACT)
This law extends the statute of limitations period for victims of hate violence who do not know the name of the person(s) who perpetrated the violence. The law changes the defined time to file a complaint from one year from the date the hate violence occurred to one year from the discovery of the name of the person(s) perpetrating the hate violence. In no event, however, may the filing be longer than four years from the date the hate crime occurred. 2002 Sen. Poochigian Voted No
SB 225 – DISCRIMINATION IN ATHLETICS
This measure prohibits discrimination in interscholastic athletics on the same bases that discrimination is now prohibited in publicly funded schools: on the basis of national origin, religion, color, gender, mental or physical disability, and sexual orientation and includes safeguards to allow private religious schools to continue to play in interscholastic athletic leagues. 2001 Sen. Poochigian Voted No
SB 257 – HATE CRIMES
This law ensures that hate crime prevention is made a part of general school safety planning by requiring the inclusion of existing hate crime reporting procedures, and existing harassment and discrimination policies in the comprehensive school safety plan which schools are required to file with the Department of Education. 2001 Sen. Poochigian Voted No
AB 1856 – SEXUAL HARASSMENT
This law makes individuals who engage in sexual harassment of their coworkers personally liable under the Fair Employment and Housing Act (FEHA) for their conduct. 2000 Sen. Poochigian Voted No
AB 2222 – DISABILITY RIGHTS
AB 2222 clarifies that definitions of “mental disability,” “physical disability,” and “medical condition” may exceed federal law for the purposes of California’s civil rights laws. It limits an employer’s ability to require medical or psychological examinations, or make certain medical or disability-related inquiries; and requires an employer to engage in a good faith, interactive process to determine reasonable accommodations for a disabled employee or applicant. 2000 Sen. Poochigian Voted No
AB 537 – CALIFORNIA STUDENT SAFETY & VIOLENCE PREVENTION ACT OF 2000
This law prohibits discrimination and harassment in education on all the same bases used in the definition of hate crimes under Penal Code Section 422.6 (a). This includes prohibitions against discrimination on the basis of actual or perceived race, color, religion, ancestry, national origin, disability, gender, or sexual orientation and applies to all educational institutions that receive state funding. Religiously controlled schools, colleges and universities are exempt. 1999 Sen. Poochigian Voted No
If, as the Chief insisted, a person’s experience as a legislator should count in qualifying him for the bench, and, in Sen. Poochigian’s case, not just the Superior Court, but the Appellate Court, then the record compiled during that experience should also be examined for prejudice and lack of fairness. These issues were not explored in the case of the new Appellate Justice for Fresno. As a result, the JNE Commission is under fire, and the resolve of the court to explore potential biases of of judicial candidates has been weakened. It’s time for a new look.
Sheila James Kuehl
Sheila James Kuehl was appointed to the California Integrated Waste Management Board on December 1, 2008, after having served eight years in the State Senate and six years in the State Assembly. Senator Kuehl served as chair of the Senate Natural Resources and Water Committee from 2000-2006. Her website is www.sheilakuehl.org