The Thin Black Line

A group of high-level California judges have mounted a dangerous public campaign against four lawyers running for local judicial office, ignoring these judges’ duty to respect our laws and defend the California Constitution.

By Matt Gonzalez

Democrats for Judge: Maria Evangelista, Niki Solis, Phoenix Streets, & Kwixuan Maloof. Photo by Elizabeth Cermak.

The upcoming June election features four incumbent superior court judges being challenged by four public defenders: Maria Evangelista, Niki Solis, Phoenix Streets, and Kwixuan Maloof.

These four races, which have drawn uncommon attention, have come to be seen collectively as a contest between two sides. On one side: incumbents who say they have experience and object to being singled out for having been appointed by Republican governors. On the other side: four civil rights lawyers who contend they will bring a needed progressive vision that the criminal justice system sorely lacks.

But the four so-called “upstart” candidates face a third, arguably more formidable group of opponents. The judiciary and the well-connected legal establishment have gathered to form a thin black line, united in denouncing the challengers and depicting the mere decision to participate as candidates for judicial election as a “threat to judicial independence”. The gravamen of their argument, as presented in major California newspapers and legal journals, is that absent inordinate malfeasance, trial court judges should be entitled to reelection.

These diatribes share two characteristics. First, the attacks share a caustic, hostile tone not usually associated with sitting jurists, who ordinarily stay out of politics. Under California law, judicial elections present an exception to the general rule prohibiting judicial commentary on politics, and supporters of the incumbents have leapt into this lacunae with seeming relish.

But the other characteristic these attacks share presents more cause for concern: none of the authors of these polemics display more than a desultory interest in what our laws actually say about elections for trial court judges.

Judicial independence is an indispensable quality for a fair and effective judiciary, but it is not the only sine qua non. Judicial selection systems implicate several other important public interests, including public accountability, equal treatment of those who appear before the bench, and, of course, respect for the law. And there is strong reason to conclude that our legislature, and San Francisco voters, in balancing these sometimes-competing interests, not only failed to adopt the “presumed retention” policy the critics seek to enforce, but affirmatively rejected that policy for trial court judicial elections.

The rules governing California’s judicial selection are found in Article 6 of the Constitution, and related Government and Elections Code provisions. These laws establish different procedures for the selection and re-election of trial judges and appellate justices. Appellate and Supreme Court justices have “retention elections”, in which they appear on the ballot periodically, and voters have the chance to approve or reject them. Trial judges, in contrast, have regular elections where challengers can also run for the office.

When it is evident that the legislature is aware of different options and chooses one, but not another, it is a basic rule of legal interpretation to conclude that the choice was knowing and deliberate. In other words, judges aren’t elected in the “presumed retention” system the challengers’ attackers are promoting, because our Legislature deliberately chose otherwise. All of the jurists feigning outrage now should be aware of this basic legal rule. Moreover, our Constitution authorizes any County, including San Francisco, to provide for “retention elections” for superior court judges if county voters so choose.[fn1] So San Franciscans could at anytime choose to hold “retention elections” for trial judges, but haven’t. It seems likely that San Franciscans have decided that there is a public benefit from judicial campaigns which give voters the opportunity to interact with potential judicial officers.

Judicial independence is not threatened by someone running for office in a democracy. Why do these judges believe they have any more “independence” simply because they were awarded a judicial appointment by a politician? And why do they feel their fidelity to the law is so fragile that it cannot withstand running for public office as our state constitution provides? If they feel standing for election will prevent them from doing the job, when the job specifications provide for such elections, they shouldn’t have accepted the position in the first place. This is more honorable than mounting a hysterical attack on challengers seeking to participate in the democratic process.

In addition to not wanting to face voters in a democratic election, when surveyed, incumbent California judges also opposed a merit-based system of judicial selection proposed by Assemblyman Joseph Nathan in 2003.[fn2] One wonders whether hereditary-based selection would be met with hostility from these judges.

Judge Anthony Kline has emerged as the leading opponent of our judicial election system. This March, The Recorder essentially re-published a screed attacking judicial election participation Kline penned for The Daily Journal in 2010 [fn3], (with editing to reflect this year’s candidates).[fn4]

In it, Kline goes so far as to claim that any lawyer who does not join in attacking these judicial candidates lacks a “commitment to the high principles of the legal profession.” In a letter to the editor published in The Recorder, Mariano-Florentino Cuellar, a State Supreme Court Judge, expressly associates himself [fn5] with Kline’s anti-democratic attack on challengers who ironically have vastly superior experience to Cuellar (Cuellar never tried a case as a lawyer before being appointed to the bench).[fn6] Both these judges diminish their stature with their disdain for the accomplishments of the challengers by suggesting these lawyers are simply political opportunists.

Just to be clear, the lawyers Kline is attacking are excellent and rank among the best attorneys practicing in the City.

Kwixuan Maloof has handled some of the most challenging cases in the San Francisco Public Defender’s Office and served as a past president of both the Charles Houston Bar Association and the California Association of Black Lawyers, both professional organizations committed to the support and advancement of African American attorneys. He previously led the San Francisco Public Defender’s Felony Trial Unit.

Niki Solis is a former manager in the Public Defender’s office, with 22-years of experience, who now handles complex litigation. She previously served as a board member and president of La Raza Lawyers Association, a professional organization dedicated to the support and advancement of Latino attorneys. She currently serves on the Criminal Law Advisory Committee of the State Bar. A native of Belize, it is believed Solis would be the first formerly undocumented judge in California’s history. She obtained her citizenship while in law school.

Phoenix Streets has tried more felony cases in the last two decades than any of the other 100 attorneys in the San Francisco Public Defender’s Office. By all accounts he is a naturally gifted trial lawyer who routinely wins his cases. A Navy veteran, he was raised by a single mother in a household of nine children, in San Francisco’s Western Addition neighborhood. He has deep roots in San Francisco’s African-American community.

Maria Evangelista, a native of San Francisco, is a 14-year veteran of the Public Defender’s Office. In addition to handling felony cases she has been trained in the specialty courts: Behavior Health Court, Veterans Court, Drug Court, and the Community Justice Court. She is a current board member of La Raza Lawyers Association and also of La Raza Centro Legal, which provides legal services to the poor, working-class, and immigrant community in areas of immigration, senior services, and eviction defense.

Judge Kline dismisses the notion that “Racism is still very strong in the San Francisco Superior Courts” as “absurd”. Black criminal defendants, who studies show languish in San Francisco jails longer than similarly situated white defendants, might disagree.[fn7] The fact that Judge Kline would so casually, and comfortably, express hostility to the mere suggestion that racism in San Francisco courts might persist is discouraging, to put it mildly. Judges, like Kline, who dismiss the notion that race still plays a role in our judicial system are ill-equipped to ward against it. And by blythely deriding well-documented racism in our justice system, they reveal themselves as too out of touch with how that system actually works to give reliable advice on what kind of judge that system needs.

The widespread tolerance of these dangerous anti-democratic ideas, and the fact that they have not been met with universal scorn demonstrates the extent to which our judicial system remains beholden to judicial elites and those who seek their favor. This acquiescence by the legal community ensures that our judiciary remains vulnerable to institutional and economic biases that have disproportionately advantaged the wealthy and powerful.

Judge Kline unfortunately is not alone in his contempt for the judicial system our constitution provides. In a disappointing display of pettiness, each member of our state Supreme Court (which includes judges: Ming Chin, Carol Corrigan, Tani Cantil-Sakauye, Goodwin Liu, Mariano-Florentino Cuellar, and Leondra Kruger) cancelled their yearly attendance at an event held in their honor by The Lawyers’ Club of San Francisco Inn of Court. Why? The official claim was that each of the judges had “late arising obligations” and therefore could not appear at what was a 69-year uninterrupted tradition created to honor the supreme court judges.

The truth? Because Jeff Adachi, San Francisco’s elected Public Defender, was the scheduled keynote speaker and the judges wished to express their displeasure over the contested judicial elections involving some of his deputy public defenders.

These judges were sending a message: Don’t cross the thin black line. Adachi was being punished for committing the sin of allowing his employees to participate in the democratic process.

Which begs the following questions: what is it that these judges contend Adachi did, or failed to do? Should he have required employees to obtain his permission before running for judge? Should he have threatened to retaliate against his deputies who ran for office against sitting judges? When Adachi swore to uphold the law when taking his oath of office, did that oath carry an exception for laws providing for judicial elections?

Regardless of the election outcome, these four challengers have already won. They’ve exposed their judicial critics as hypocrites, and shed light on the improper efforts by highly-placed members of our judiciary to erect obstacles blocking the exercise of constitutional rights. By showing the courage necessary to face these obstacles, they’ve set an example we would all do well to emulate. And by forcing incumbent judges to actually spend time with the voters they are discharging the duty that Nelson Algren called “the hard necessity of bringing the judge on the bench down into the dock.”

The California Constitution provides for judicial election of trial judges, not sham elections or perfunctory rituals. If our judicial selection system is threatened, the threat is not posed by participants in our democratic judicial selection process, but by those who would replace it with a system of automatic retention that neither voters nor their representatives chose.[fn8]

Judges who substitute their own interests for those of the democratic ideals they are entrusted to protect, breach their judicial duties, and render themselves useless to any effort to promote justice.

— Matt Gonzalez

Matt Gonzalez is the chief attorney of the San Francisco Public Defender’s Office. A graduate of Stanford Law School he previously served as president of the San Francisco Board of Supervisors.

Footnotes:

1. Cal. Const., Art. VI, § 16(d) (“Electors of a county, by majority of those voting and in a manner the Legislature shall provide, may make [the retention] system of selection applicable to judges of superior courts”).
2. See Brennan Center, “California Judicial Elections”, February, 23, 2004 update, p3, ¶7.
3. J. Anthony Kline, “Judicial Election Presents Political Dangers”, Daily Journal, July 13, 2010. Somehow, our judicial system proved sufficiently robust to survive the “threat to the independence of the judiciary” Kline claimed was posed by Michael Nava, who in 2010 took the radical step of running for judge under rules providing for judicial elections.
4. J. Anthony Kline, “Letter to the Editor: The Politicization of the San Francisco Superior Court”, The Recorder, March 14, 2018.
5. Mariano-Florentino Cuellar, “Letter to the Editor: An Attack on the Integrity and Independence of California Courts”, The Recorder, March 26, 2018.
6. “State high court nominee Cuellar sails through confirmation hearing”, Los Angeles Times, August 28, 2014 (“Cuellar’s answers to questions contained in the application underscored the relatively little time he has spent in a courtroom. He said he has not appeared in a court for five years or tried any cases to verdict. He has no experience in civil litigation or criminal practice and has never taken a deposition or argued before an appeals court.”)
7. A 2015 study by the nonprofit W. Haywood Burns Institute found wide racial disparities at every stage of the criminal justice process in San Francisco. Researchers concluded that “the prevalence of these disparities undermines any notion of ‘justice’ in our criminal justice system. Given the disparities outlined in this report, it is incumbent on local stakeholders to address the inequities in the criminal justice system.” San Francisco Reinvestment Initiative: Racial and Ethnic Disparities Analysis for the Reentry Council, W. Haywood Burns Institute, 2016. “The 2015 report, conducted by the W. Haywood Burns Institute for For Youth Justice, Fairness & Equity, also found that while 46 percent of black inmates and 35 percent of white inmates booked in San Francisco were eligible for pretrial release — of those eligible — 54 percent of white inmates were actually released while only 48 percent of black inmates were released.” https://www.burnsinstitute.org/wp-content/uploads/2015/06/SF_JRI_Full_Report_FINAL_7-21.pdf
8. The judges’ law-free pronouncements have misled the public as to what judicial selection system our laws provide. For example, Amy Bacharach, a non-lawyer, recently wrote an article on the current controversy in which she defends the “retention elections” system for superior court judges, a system that does not exist. See Amy Bacharach, “Elections threaten San Francisco judiciary”, San Francisco Examiner, May 2, 2018. It is easy to understand how Ms. Bacharach could come to believe our laws provide “retention elections” for superior court judicial elections. This is precisely what Kline and other judges have implied.