It is a simple enough question: yes or no? Voters on Nov. 5 will answer the question many times, and the independence of California's judicial system depends on the answer.
Justices for the California Supreme Court and Court of Appeal are appointed for 12-year terms by the governor. They are confirmed by a committee consisting of the chief justice of the Supreme Court, the attorney general and the presiding justice of the Court of Appeal. If a judge is appointed to serve the remaining term of a retiring or deceased judge, or when the judge has finished a 12-year term, the jurist must be approved in an election in order to remain on the bench.
Among the judges up for retention on the Nov. 5 ballot are a handful of Gov. Gray Davis appointees with close ties to the L.A. Jewish community.
Appellate Court Justice Richard Mosk of the 2nd District (Los Angeles and Ventura counties) is active in the community. He is the son of former state Supreme Court Justice Stanley Mosk, who died in June 2001. Justice Carlos Moreno, who was named to Stanley Mosk's seat on the Supreme Court, is up for vote as well.
Other Appellate Court justices on the ballot include Steven Perren, whose Jewish community involvement includes a stint as assistant cantorial soloist at Ventura's Temple Beth Torah; Dennis Perluss, who is married to Rabbi Emily Feigenson of Leo Baeck Temple; and Laurence Rubin, who began his legal career as a law clerk for Justice Stanley Mosk .
Laurie Levenson, a professor at Loyola Law School and director of its Center for Ethical Advocacy, said of the Nov. 5 retention vote, "This is a gimme. All of these justices should be retained."
Levenson, who also serves on the Los Angeles County Bar Association's Judiciary Committee, added, "I'm somewhat troubled by the concept of electing judges." Unless they have acted dishonestly or can be shown to be incompetent, she said, "the law anticipates that they will be reelected. The idea is a little bit of accountability," rather than a review of the judges' stand on political issues.
However, political issues can intrude in the judicial sphere, as was the case in 1986, when pro-death penalty voters organized to defeat state Supreme Court Chief Justice Rose Bird and associate justices Cruz Reynoso and Joseph Grodin.
"The opinion in the legal profession is that the whole Rose Bird fiasco was not good for the courts," Levenson said. Yet that did not stop activists from organizing in 1998 against Chief Justice Ronald George and Associate Justice Ming Chin, primarily in opposition to their votes in the 1997 ruling overturning the law that required teenage girls to have parental consent for an abortion. The justices were retained. This year, no organized opposition has developed over the vote on the judges.
But the current slate of justices cannot rest easy. In an October 1998 article for the County Bar Association, then-Bar President Lee Smalley Edmon wrote that "a judge who must make a decision that may be politically unpopular and who faces the prospect of becoming a target in an election is under considerable pressure," and that "such threats to an independent judiciary should be a concern in our constitutional democracy."
Another threat to the judiciary that has surfaced is voter apathy. Since the 1986 election, the average "yes" vote for Supreme and Appellate Court justices has declined from 75 percent to 60 percent, according to the Bar Association.
Edmon attributed the decline to "the trend toward anti-government voting." He said there is also "a decline in public confidence in institutions generally," plus the fact that "the public is rarely well informed about individual judicial candidates."
Of the lack of information voters have on judges, Levenson said, "No news is good news." If a justice up for retention were dishonest or unqualified, she said, "believe me, you would hear about it."
Justice Richard Mosk posits another reason why Jews, in particular, should vote to retain the judges on the ballot: an independent judiciary is good for the Jews. "Jews depend upon religious freedom to protect their interests," he said. "Only an independent judiciary, unafraid of the electorate, will stand up to protect minorities."
Some prominent Jewish politicians have joined Mosk in asking voters to retain the judges. Former Los Angeles County Supervisor Edmund Edelman, Supervisor Zev Yaroslavsky, Los Angeles City Councilman Jack Weiss and Edward Sanders, former president of The Jewish Federation of Greater Los Angeles, sent a letter to The Jewish Journal, stating, "We believe it is very important that voters vote to retain all of the Supreme Court and Court of Appeal justices by voting 'yes' next to each of their names on the ballot."
"Voting to retain these justices will help preserve the independence of the judiciary," the letter said. "Judges should not have to worry about losing their positions unless they are clearly deficient, and none are."
Levenson went a step further, saying, "I actually think they're a terrific bunch. I would go on the principle that they should be retained just if they're competent. But actually in this election, we should check off the boxes and say we're grateful."