MORE JUDICIAL CANDIDATES SPEAK OUT, CRITICIZE SAN DIEGO BAR’S RATING SYSTEM

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Hear a podcast of our interview with Carla Keehn (photo, left), Superior Court judicial candidate: http://kiwi6.com/file/x3reawfy6gThe interview aired on KNSJ 89.1 FM.

By Miriam Raftery

May 7, 2014 (San Diego) – How fair are ratings for judicial candidates meted out by the San Diego County Bar Association?

Last week, the Bar’s Judicial Election Evaluation Committee (JEEC)came out with rankings in five contested Superior Court judicial races.  The Bar ranked three candidates as “lacking qualifications” including one with extensive experience and no disciplinary actions. The professional lawyers’ group also gave a “highly qualified” rating to an incumbent judge who  pled guilty to reckless driving  with alcohol involved and has faced multiple legal disciplinary actions.

Now some candidates are speaking out to criticize the Bar’s ratings system—calling for its abolishment or dramatic changes to make the system more transparent and fair.

One of those candidates, Carla Keehn, has erected billboards starting today to reveal her opponent’s criminal conviction.  “Vote for Carla Keehn, the only candidate without a criminal conviction. No one is above the law—not even judges,” the billboards read.

Keehn is a career prosecutor running against incumbent Judge Lisa Schall.  Schall pled guilty to reckless endangerment with alcohol involved after being arrested driving on the wrong side of the road.  She also had several judicial admonishments including abuse of contempt power and jailing a female litigant in a domestic dispute without due process.  Such admonishments are rare; less than one percent of judges receive even one admonishment in a lifetime. Schall, who has served on the bench for 28 years, none-the-less received a well qualified rating.

Keehn has served as an Assistant U.S. Attorney with over 17 years of experience as a federal prosecutor. She has also been a Deputy Public Defender and a captain in the U.S. Army. She received her law degree from Hastings School of Law at the University of California, San Francisco and is an honors graduate of Princeton, she said.  Her opponent, Judge Schall, received her law degree from Western State, a law school that was unaccredited at the time.  

“I think that it’s important that the voters know the truth,” said Keehn, who has not faced any disciplinary actions.  She questions why she did not receive a well qualified rating and why her opponent was ranked well qualified.  She says the rating system “is not transparent at all,”  lacks objective criteria and fails to explain why individual candidates received specific ratings. 

Keehn notes, “We vote for president, vice president, governor, all the officials and there is no rating system. We use our common sense and in the modern age, we have a great tool, the Internet…there is huge amount of information available.” She added that the Bar’s rating system may be a “rubber stamp process” for incumbent judges rather than an impartial ranking. 

The County Bar’s ratings, which began in 1978, are done by a bipartisan cross-section of attorneys from multiple fields. The Bar did not respond to our request for an explanation on the specific reasons for this year’s rankings.  But according to the Bar’s press release, candidates are evaluated based on:

 “judicial temperament, intellect and ability, knowledge of the law, trial experience, professional reputation, industry and work habits, decisiveness, fairness and objectivity, courtesy and patience, judgment and common sense, compassion and understanding, integrity and honesty, administrative ability, physical and mental health, courage, writing and research skills, and any other factor that might affect the candidate’s ability to serve as a judge. The Committee may also consider in the evaluation process any violation of the Judicial Election Campaign Code of ethics.

This year, the three candidates ranked as “lacking qualifications” are Michele Hagan, Doug Crawford, and Ken Gosselin. Two of those, Crawford and Gosselin, have faced controversies.  Crawford is appealing a suspension of his law license and has drawn criticism for racial remarks, as ECM recently reported. Gosselin was ordered by a court to revise claims made on his ballot statement regarding his education and experience.  He had claimed to be Harvard-trained when in fact he took only a single mediation class at Harvard.  He also claimed to have heard numerous criminal and civil cases as a Judge Pro Tem when in fact he heard only traffic and small claims cases, as we reported previously.

Hagan, however, has an extensive resume and says she has never faced any disciplinary actions.

ECM reached out to all three candidates with “lacking qualifications” ratings to ask for comments.

Hagan, a former prosecutor and Judge Pro Tem, told ECM that the Bar “told me they didn’t like my blog.  In particular, they did not like me criticizing one of their local judges.”  She calls the action “ridiculous” and adds that the blog entry in question was posted two years ago, before she became a candidate.  “But even the Judicial Canons of ethics do not prohibit you from exercising First Amendment Rights,” she said. “Lady Justice wears a blindfold, but she doesn’t wear a gag.”

In the post, Hagan spoke out against a judge who ordered a woman to pay alimony to her ex-husband even though he had raped her.  A law, AB 1522, was passed as a result to prohibit spouses convicted of a violent sexual felony from being awarded alimony from their victims.

One that that does not appear to be in dispute is her extensive experience.

Currently she is a legal analyst on TV and radio who has appeared on major network news shows covering high profile legal cases such as the O.J. Simpson murder trial and President Clinton’s impeachment.   According to her bio, she previously served as San Francisco Assistant District Attorney and San Diego Deputy City Attorney (Supervising Trial Attorney and Special Prosecutor of Domestic Violence and Child Abuse) and as a Judge Pro Tem, or temporary judge in San Francisco Superior Court. She claims to have tried over 100 jury trials and handled cases ranging from criminal to civil. She’s been a civil rights fact finder/investigator and is a certified fraud examiner. She has chaired the American Bar Association’s Negotiations Skills Committee and served on the faculty of the National Institute for Trial Advoacy. She’s taught advocacy skills at law schools including the University of San Diego, Emory, Loyola and the University of San Francisco. She has a law practice and legal training firm, TRIAL READY®.  A former newspaper columnist, she currently writes for her Trial Ready Blog.

Hagan believes that lawyers should not look the other way in the face of injustice. She adds, “My life has been about trying to educate consumers as to what their rights are.”

She questions why Judge Lisa Schall (in a different judicial race) was ranked well qualified despite a 2007 DUI arrest that was later pled down to a reckless driving conviction. Schall was also admonished three times for violating judicial ethics, including jailing an individual without due process. 

“You don’t stand by judges right or wrong,” said Hagan. “You stand by justice.”

Hagan voiced amazement that media has not looked into “the inherent conflict of interest” in the Bar’s attorneys ranking judges they may appear before.  “We don’t let football players pick referees.  Why do we let attorneys pick judges?” she asks. “It’s not transparent.” She believes the ratings should be abolished.

Hagan is running against two opponents for an open seat.  One of them, Deputy Attorney General Brad Weinreb, was rated qualified. The other is Gosselin, rated lacking qualifications.  Gosselin is an attorney who has served as a Judge Pro Tem.  Gosselin has not responded to our request for comment on his negative rating from the Bar.

Douglas Crawford is running against incumbent Superior Court Judge Ronald Prager, who has served many years on the bench and has handled numerous high profile cases including a landmark settlement with tobacco companies. Prager was rated well qualified.

Crawford told ECM he did not find the Bar’s rating “insightful or surprising.”  He suggests that his opponent makes rulings based on favoritism and questioned why  concerns were not raised over his opponent’s record of striking statements of disqualification filed against himself.   Crawford said he declined to participate in the Bar’s evaluation process because “in my opinion they are no better suited to evaluate the qualifications of a judicial candidate than any other member of the public but actually less qualified in this particular case. The manner in which they gather information is skewed such that any data or information they receive is only from other attorneys, typically opposing counsel, and the candidates themselves,” he said, suggesting an “old boys” network.  He added that names of the committee are public record and that some have cases before Judge Prager, therefore he suggests those attorneys may not wish to risk unfavorable rulings by giving a less-than favorable rating.

Crawford does admit that he is not qualified to preside in Famly Court or Probate Court, nor has ability to preside over felony trials, but says he would disqualify himself from such cases.

Are the complaints of candidates who received poor ratings just sour grapes? Or is there merit in their criticisms?

The Bar justifies its efforts to rate judges by noting that it’s often difficult for the public to get information on judicial candidates.  For example, in 2012, judicial candidate Jim Miller was ranked “lacking qualifications” after being removed as a Judge Pro Tem and posting comments on his Facebook page about cases before him on the bench.  Also in 2014, constitutional lawyer Gary Kreep won a judicial race but some voters claimed to be unaware that he was also a prominent ”birther” leading efforts to discredit President Barack Obama. 

Miller blasted the Bar for the rating he received, accusing the Bar of partisan bias against Miller, a Republican. However this year the Bar gave low rankings to both Republican and Democratic candidates, belying the partisan criticism.

While challenges to sitting judges were once rare, increasingly in recent years, challengers have emerged, some lacking the depth of experience that judges appointed to their positions customarily have and several pushed forward by partisan or ideological groups less concerned with fair interpretations of the law than with politics. Hence some attorneys have argued, a ratings system from local legal experts familiar with the candidates can provide a valuable service to the public.

One potential option would be for the Bar to consider a more transparent system in which the public could be informed about what categories of criteria triggered a low rating—and apply standards consistently, particularly on clearly measurable factors such as the number of disciplinary proceedings against an incumbent judge.  Another option could be a judicial ratings committee that includes people other than attorneys practicing law before the current judges, such as retired attorneys, law professors, and non-attorneys such as representatives of victims' rights advocates or the American Civil Liberties Union.

East County Magazine contacted the Bar to request an explanation of the current ratings, but did not receive a response. The Bar customarily has declined to comment on the reasons behind any specific judge's rating.

You can listen live to the East County Magazine Show on KNSJ on Mondays, Wednesdays and Fridays from 5-6 p.m. at KNSJ 89.1 FM or online live at http://knsj.org/knsjpopup.html