Judges and Judiciary
Jul. 27, 2002
Quid Pro Quo in Alameda
SAN FRANCISCO - Alameda County's judges have backed away from a system that reserves plum assignments for senior judges, reacting to rumors that the governor's office will refuse to fill vacancies unless reforms are made.
Burt Pines, Gov. Gray Davis' judicial appointments secretary, denied the rumors and indeed disclosed Monday that he has sent a new list of Alameda candidates to the State Bar's Commission on Judicial Nominees Evaluation.
An Alameda appointment will be made "soon," Pines predicted.
As a tacit quid pro quo, the seniority system now is dead, Alameda judges said.
The face-off over assignments underscores Pines' power, as dispenser of judicial robes, to influence the iconoclastic Alameda judges, whose bench is the only one in California that retained a strict seniority system despite official disapproval.
Pines' displeasure with the system - he called it a disincentive to judicial applicants reluctant to spend years in junior assignments - came across in pointed colloquies with Alameda judges.
Alameda County Presiding Judge Harry Sheppard said he believed Pines did threaten to withhold judicial appointments.
"I've heard it through third parties," Sheppard said last week. "But as far as I know, [the threat] should be inoperative because we are ending our seniority system."
Pines acknowledged that his attempts to jawbone Alameda judges into jettisoning seniority might have been misconstrued.
"Judges may have asked me, 'What's happening with appointments?' and I may have said, 'What's happening with your seniority system?' but I can assure you there was no threat. I was just trying to nudge them a little," he said.
Alameda is authorized to have 69 judges. It currently has 66, four of whom are on disability leave. Three judges are set to retire in the next few months. Absent new appointments, that will create a 10-judge deficit, or a bench that is about 14 percent vacant.
By contrast, Los Angeles County's 412-member bench is short just 16 judges, a vacancy rate of about 4 percent.
San Diego County, authorized to have 128 judges, has only two open seats, a vacancy rate of less than 2 percent.
Pines, a former Los Angeles city attorney, has sent no new judges to relieve the Alameda bench since last year.
As proof that the seniority system is history, Sheppard said that in October he will move Judge Steven Brick from a general criminal assignment at the Wiley W. Manuel Courthouse in Oakland to a civil law and motion post at the Hayward Hall of Justice.
"He's a junior judge, and law and motion is a more advanced assignment," the presiding judge said.
Both Sheppard and Brick phoned Pines to announce that the move spelled fini to the seniority system, Pines said.
Sheppard denied making such a call, though he said he'd assured Pines months ago that the system was ending.
Sheppard said he hoped that taking the step of reassigning Brick would convince Pines to end the freeze and step up appointments. From the Berkeley Courthouse to the Fremont Hall of Justice, the sprawling county's 14 court venues are stretched thin.
"We need judges," Sheppard said. "We'll send a limo for them."
Some are concerned about the intrusion of the governor's office into the management of local courts.
Holding hostage the appointment of judges by the executive branch to force policy changes in the judiciary raises a separation of powers issue, said former state Supreme Court Justice Cruz Reynoso.
"Local courts ought to have the authority to establish their own local rules," said Reynoso, a teacher and scholar at UC Davis School of Law. "Branches of government need to be respectful of one another in order for democracy to function."
A retired judge was less diplomatic. Pines' alleged power play is "f--ing outrageous," the judge said on condition of anonymity.
The infighting over judicial prerogatives serves the public poorly, because empty courtrooms mean longer waits for justice, the retired judge added.
Pines' asserted threat "certainly raises issues in terms of the independence of the judiciary," said Alameda County Superior Court Judge Ronald M. Sabraw.
"It also raises questions of whether Mr. Pines is in a position to promise certain assignments to judicial candidates. That would be troubling."
Behind their professional pose of black-robed impartiality, judges hunger for choice jobs, often ducking small claims and traffic court. Some yearn for the high-visibility felony trial courtrooms in the main Alameda County Courthouse and the County Administration Building on Oak Street. Others opt for peaceable outlying venues near their homes in Hayward or Pleasanton.
Many avoid the emotionally charged family law bench. Some spurn juvenile and misdemeanor assignments. Civil trial posts are especially prized because the experience opens doors to retirement careers in private mediation and arbitration.
Pines' unhappiness with the Alameda court, according to judicial scuttlebutt, has extended to another unconventional local practice: Pines reportedly faulted the bench for seeking more judges while wasting judicial resources with a time-consuming voir dire procedure in capital cases.
So-called Hovey voir dires require individual in-chambers questioning of prospective jurors to assess their emotional response to the death penalty.
One Alameda judge relayed a second-hand report that had Pines grousing, "You want more judges, and you're still doing Hovey voir dires?"
Pines denied any knowledge of the voir dire matter. His rumored attention to Hovey voir dires may reflect the judges' sensitivity to the fact that Alameda County is the only venue in the state that uses them.
The procedure is named for a screening process mandated by the state Supreme Court in Hovey v. Superior Court, 28 Cal.3d 1 (1980), in a case that, coincidentally, involved Alameda County.
Under Hovey, prospective jurors are to be summoned individually into chambers and asked five standard questions to learn whether their feelings for or against the death penalty are so strong as to preclude fairness. The ruling came during the 1979 prosecution of Richard Adams Hovey for the kidnapping and stabbing murder of an 8-year-old Hayward girl, Tina Salazar, which ended with his conviction and death sentence.
"The Hovey voir dire was forced on us by that case, and it got ingrained in our judicial culture," said an Alameda County criminal courts judge, speaking on condition of anonymity. "We're a liberal county, and I believe we're in the forefront of legal scholarship on death penalty cases."
The downside of the Hovey procedure is that it takes a long time. Counties around the state followed Hovey for a decade until Proposition 115, the Crime Victims Justice Reform Act of 1990, overturned Hovey and made sequestered, individualized voir dires optional.
Shepherd said he agrees that, to speed up overcrowded court calendars, the Hovey voir dire should go.
"I've been trying to curtail the length of time it takes to select juries," Shepherd said. "We're moving slowly on it. The judges have agreed to examine their position."
Despite Shepherd's attempts to end the Hovey voir dire and to reform the judicial seniority system, he may not have moved fast enough.
Pines' impatience with Alameda arose when the bench flouted a new statewide rule designed to end seniority in judicial assignments.
In October 2001, the Judicial Council voted to require presiding judges throughout the state to cease basing judicial assignments solely or primarily on seniority.
Most counties had long before gotten more flexible in assigning judicial duties. The new rule, though couched in general terms, in reality targeted Alameda and San Diego counties, whose benches obstinately clung to a first-come, first-served routine.
San Diego's system "was never particularly rigid and was never that big of a deal," Assistant Presiding Judge John S. Einhorn said this week. "Our assignments were always based first on the needs of the court."
Alameda's system, by contrast, was ironclad.
Pines was a principal architect of the new anti-seniority rule, according to the report of an advisory committee of presiding judges., because he believed a seniority system inhibited the recruitment of lawyers to be judges.
The judges committee reported Pines' concern "that basing assignments solely or primarily on seniority might be discouraging qualified candidates with expertise in particular areas from applying to the bench because they would lack the seniority necessary to obtain assignments in those areas."
The new Rule 6.603 of the California Rules of Court tells presiding judges making assignments that they must take into account the demands of the assignment, the judge's experience and interests, the need for continuity in the assignment and the needs of the public and the court.
The lone dissenting vote when the rule was adopted by the Judicial Council came from Alameda County's Sabraw - who happens to be one of the county's most senior judges.
Sabraw, himself a former presiding judge, said the seniority system was designed to ease "tension over assignments" raised by unification.
"There was an elegance to the old system" of municipal and superior court judges, he said. "There was a division of labor."
He acknowledged, however, that a rigid seniority rule can work to a court's disadvantage.
"People less talented can end up in inappropriate positions," he said. "And it's a brave presiding judge under an entrenched seniority system who would refuse to follow the rule. He'd likely be the first one-term PJ in history, if the rest of the bench didn't recall him then and there."
Despite the rule change by the Judicial Council, the Alameda County bench met a month later to distribute 2002 assignments - using the outlawed seniority rule.
Standing before a large chart of courtroom choices, Sheppard asked for bids from a list of judges ranked strictly by tenure.
Sheppard said he did not try to persuade his colleagues to make the 2002 assignments under the new rule. The judges, meeting in November 2001, took judicial notice that the rule's effective date was Jan. 1, 2002.
"We had an agreement [the old seniority system] that couldn't be modified without a two-thirds vote, and we weren't going to confront that," he said.
Judges always have been keenly aware of their place in the pecking order, and rank has always had its privileges. The rigid, written-out seniority rule was a product of Alameda County's 1998 court unification. Municipal court judges held out for a protective agreement to ensure that new judicial appointees could not encroach on their turf. Superior court judges agreed to the rule for the same reason.
A result was that newcomers to the Alameda bench have had to languish in low-level assignments, able to advance only on another judge's retirement or on a judge's decision to move out of a desirable job. Even then, senior judges had first crack at an open post.
Sabraw, a former municipal court judge, said it was five or six years after he took the bench before he became eligible for an advanced assignment.
Alameda County rookie judges envied venues like San Francisco, where jurists tend to move up on merit.
Highly-regarded San Francisco Superior Court Judge John Munter, for instance, was appointed to the bench in January 1994. Six months later he was presiding over the nationally-watched sexual harassment trial against the law firm of Baker & McKenzie that ended in a $6.9 million jury award to secretary Rena Weeks.
Enormous courts such as Los Angeles County's also get along without a seniority system, according to a longtime bench observer.
"Assignments get made by who knows who, who wants what and who's been a bad boy and has to go to Lancaster," said the observer, who requested anonymity.
"Amazingly, it usually sorts itself out, out of preference and necessity. Every two years a new PJ comes along, elected by colleagues who trust him to be fair - or who think he owes them."
John Roemer
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