The Supreme Court’s baffling tech illiteracy is becoming a big problem

The Supreme Court’s baffling tech illiteracy is becoming a big problem

If one thing was clear from decisions handed down this week, it's that SCOTUS is clueless on technology Selina MacLaren
Salon.com

 Jun 28, 2014 

 

...The problem isn’t that the justices are old fogeys. The problem is that the justices were groomed in a field that emphasizes reasoning by analogy. And analogies were critical in these cases: The Aereo decision, for example, hinged on whether the company was more like an equipment provider or a cable company; the Riley and Wurie decisions addressed whether cell phones are sufficiently analogous to wallets. But emerging technology is, by definition, about breaking away from history. Perhaps reason by analogy hamstrings innovation, or perhaps it promotes impartial decision-making. In any event, it helps explain why the justices sometimes say such silly things.

Years of tortured analogies at oral arguments culminated most recently with this week’s cases, but a look back at decisions from years past reveals an abaundance of strained analogizing. In past arguments, computers were analogized to typewriters, phone books and calculators. Video games were compared to films, comic books and Grimm’s fairy tales. Text messages were analogized to letters to the editor. A risk-hedging method was compared to horse-training and the alphabet. EBay was likened to a Ferris wheel, and also to the process of introducing a baker to a grocer. The list goes on.

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“I think there are very, very few things that you cannot find an analogue to in pre-digital age searches,” Justice Breyer said during the Riley oral argument. “And the problem in almost all instances is quantity and how far afield you’re likely to be going.” For the high court, a prior century or two apparently isn’t too far afield.

The justices are tickled by these analogies. Justice Kennedy, for example, appears blissfully unaware of the new definition of “troll,” and covered for his ignorance with a joke during oral argument for eBay v. MercExchange: “Is the troll the scary thing under the bridge, or is it a fishing technique?” This raised eyebrows in the patent industry, where “patent troll” is a stock phrase. Justice Bryer, during the the Riley oral argument, interrupted a discussion about the GPS capabilities of smartphones with another analogy joke: “I don’t want to admit it, but my wife might put a little note [with directions] in my pocket.” (Is the smartphone supposed to be like his wife? Unclear.)

Justice Alito, arguably the most analogy-obsessed of the bunch, best summed up the Court’s historical handicap when he teased Scalia in 2011, saying: “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

But this fixation on technological analogies is more than just an idle curiosity. It has real-world implications that are not to be underestimated. Recent years have borne out that if a technology under scrutiny cannot be analogized to a historically protected invention, it may be doomed. In 2006, for example, Chief Justice Roberts doubted that eBay was an actual invention. He asked the lawyer, Seth Waxman, what the invention of eBay was, and when Waxman explained it as an electronic market, Chief Justice Roberts responded flippantly, saying, “I mean, it’s not like he invented the internal combustion engine or anything. It’s very vague.”...

 

Here is a judge and a case that offers a bit of hope for our legal system

Judge Awards Utah Couple $306,750 in Case Against Retailer That Tried to Impose Fine for Critical Online Review

Statement of Scott Michelman, Attorney, Public Citizen

June 26, 2014

Contact: Angela Bradbery (202) 588-7741
Scott Michelman (617) 899-9076

On Wednesday, Judge Dee Benson of U.S. District Court in Utah awarded Public Citizen clients John and Jen Palmer $306,750 ($102,250 in compensatory damages and $204,500 in punitive damages) against the online retailer KlearGear.com. The company had demanded $3,500 from the Palmers for writing a critical online review of the company, then ruined John’s credit when he refused to pay.

As a result of KlearGear.com’s actions, the Palmers lost credit opportunities; suffered anxiety, fear and humiliation; and spent weeks without heat in their home for themselves and their 3-year-old son when their furnace broke and they were unable to obtain a loan to replace it.

Public Citizen sued KlearGear.com on the Palmers’ behalf in December. When KlearGear.com failed to respond, the court granted a default judgment declaring that John did not owe the $3,500 and setting a hearing, held Wednesday, to determine damages. After an hour-long hearing at which both plaintiffs testified, the judge announced the award from the bench.

We are gratified by Judge Benson’s ruling, which appropriately compensates the Palmers for their ordeal and punishes KlearGear.com for its abuse of the credit reporting system in retaliation for the Palmers’ speech. The court sent a strong message that corporate bullying of consumers would not be tolerated. The Palmers are relieved that John’s credit has been restored and they feel vindicated by today’s award.

More information about the case is available here.

Canadian Judge Says Google Must Remove Links Worldwide

 Is the golden age of the Internet over?  Will we need to go back to the printing press to share information?

Canadian Judge Says Google Must Remove Links Worldwide

By IAN AUSTEN

New York Times

June 19, 2014 

 

Google has argued that following a global order by a Canadian court to remove specific search results could put in into conflict with laws of other countries.

OTTAWA — Google will appeal a decision by a court in British Columbia that requires the company to remove specific search results worldwide. While the case stems from an intellectual property dispute between two small industrial equipment companies, some legal experts say that if the decision is upheld it could have far-reaching consequences for the Internet.

The temporary order, granted last Friday by the Supreme Court of British Columbia, emerged from protracted litigation between two companies which were once both closely connected. Equustek Solutions makes a device that allows industrial machines made by different manufacturers and that use different software to communicate with each other. Those products were marketed by another company, Datalink, which sold them under its name.

While the two companies almost merged at one point, relations soured in the middle of the last decade and they split. One result of that was the court finding that Datalink’s stole Equustek’s designs and engineering to create its own device, which it largely sells through the Internet.

Trying to block the sales of Datalink’s product, however, has not been easy despite a court order banning online sales in December 2012. Datalink’s owners appear to have left Canada and the location of its Web-based operation is unclear.

In an earlier court ruling, the court ruled in favor of Equustek Solutions and its principals. After that ruling, Google Canada began to voluntarily remove the Web address related to Datalink from searches made through Google.ca. But in last week’s decision, Justice Lauri Ann Fenlon found that Datalink swiftly set up new websites with slightly different addresses every time it was blocked from search results in Canada by Google.

“Websites can be generated automatically, resulting in an endless game of ‘whac-a-mole’ with the plaintiffs identifying new URLs and Google deleting them,” she wrote.

Her solution, unprecedented for Canada, was the interim injunction requiring Google to kill all Datalink search results worldwide.

If upheld and then emulated by courts in other countries, said Michael Geist, a law professor at the University of Ottawa, the Internet could go from being perceived as a lawless place to “one where all courts apply” setting up conflicts between nations on several issues, particularly freedom of expression.

“The judge recognizes that there is this global impact but doesn’t really want to deal with it,” said Professor Geist, who holds the Canada Research Chair in Internet law. “Where this decision goes off the rails is when the court decides its order making power is limitless.”

Google Canada declined to comment beyond a short statement: “We’re disappointed in this ruling and will appeal this decision to the British Columbia Court of Appeals, B.C.’s highest court.”

Professor Geist said he was puzzled that the order involves Google and no other web search provider, like Bing, making the information still easily available.

And while he agreed that the court could, and probably should have, ordered these search results struck in Canada, he said that it overreached with its global order. It would have been more appropriate, Professor Geist said, if Equustek sought similar orders in each of the countries where Datalink does business. They are not likely very numerous. Court filings indicate that at its peak in 2005, Equustek only sold 672,000 of its devices.

For Professor Geist, the decision is troubling in two different respects. If the order stands, it would most likely put Google in the position of deciding itself which court orders it obeys and where it honors them.

At the same time, he asked how Canadians would feel if “the European Court of Justice looked to extend the right to be forgotten not just to Europe but to the rest of the world?” That ruling, released last month, requires all search providers’ European operations to remove links that people believe violate their online privacy.

In its court submissions, Google argued that following a global order by a Canadian court could put in into conflict with laws of other countries. It cited a case where a French anti-racism group said that Yahoo had broken French law by allowing users to sell Nazi artifacts through its websites. A French court ordered Yahoo to block all access from France to Nazi artifact postings stored on its servers in the United States and fined the company about $15 million.

Yahoo voluntarily removed the material and then turned around and sued the anti-racism group in California, arguing that its First Amendment Rights to free expression had been violated. A federal judge sided with Yahoo in 2002. But that was set aside by an appeals court in 2006, which did not address the question of whether American Internet companies must honor rulings by foreign courts related to postings that are unlawful overseas but not in the United States.

Professor Geist said that Google would most likely ask the appeals court to put the injunction on hold until it reaches its decision, a process that could be lengthy. It is also possible that Google will be supported in its appeal by other Internet search companies.

Based on earlier Canadian cross border Internet cases, Professor Geist said he expected that the global order would be struck down.

“This judge has decided that she’s going to decide for the rest of the world,” he said, adding that it appears that the judge, seeing the size and power of Google, may have decided that “judges need powers that are equally large if they’re going to deal with it.”

CA Supreme Court Won't Publish Opinion that Former UCLA Basketball Player’s Defamation Lawsuit May Go Forward

Metropolitan News-Enterprise

June 12, 2014

Supreme Court Denies Request to Publish Ruling in Former UCLA Basketball Player’s Defamation Lawsuit

By a MetNews Staff Writer

The California Supreme Court yesterday declined to order publication of a Court of Appeal ruling that allows a former UCLA basketball player to sue Time Inc. over a critical story that appeared in Sports Illustrated.

The justices, at their weekly conference in San Francisco, voted unanimously to deny the request by attorneys for Reeves Nelson. While court rules allow the Supreme Court to order publication of Court of Appeal opinions where the panel has denied certification, such requests are rarely granted.

Div. Four ruled March 11 that Nelson had established a prima facie case of defamation and false-light invasion of privacy, and that Los Angeles Superior Court Judge Mary Ann Murphy erred in granting the defendant’s anti-SLAPP motion.

The story by George Dohrmann appeared in March 2012. It said that Nelson, who had been dismissed from the team, was the “ringleader” of a band of undisciplined freshman athletes whom coach Ben Howland couldn’t or wouldn’t control, leading to a failed season.

—AP UCLA coach Ben Howland and Reeves Nelson are pictured during a UCLA basketball game.

After leaving UCLA, Nelson played for a pro team in Lithuania for five weeks, returning to await the results of the 2012 NBA draft. When no team selected him, he tried unsuccessfully to catch on with the Los Angeles Lakers, then played in the NBA Development League.

The website LatinBasket reported that he played this year for a team in Nogales, Mexico.

The story claimed Nelson had been involved in numerous incidents in which teammates were physically attacked or otherwise demeaned. He supposedly deliberately injured teammates during practice; urinated on a fellow player’s bed; pulled on a player’s arm, reinjuring the man’s surgically repaired shoulder; knocked another teammate to the ground from behind, injuring his back; and injured another player by elbowing him in the ribs, all of which he denied.

Nelson further denied Dohrmann’s assertion that he had admitted those allegations and apologized for them when he said:

“On all that stuff, I have no trouble admitting that I lost control of my emotions sometimes. I take responsibility for my actions. I’m really just trying to learn from the mistakes I made on all levels.”

Dohrmann and his editor both filed declarations insisting that the story had been carefully and accurately sourced.

Los Angeles Superior Court Judge Lee Edmon, writing for the Court of Appeal while sitting on assignment, agreed with the trial judge that the plaintiff was a limited purpose public figure who must prove actual malice in order to prevail. But Edmon also concluded that Nelson had a prima facie case because if he can prove that he never admitted to or apologized for the alleged misconduct, he will have established falsity and actual malice.

She cited Masson v. New Yorker Magazine (1991) 501 U.S. 496, in which the high court held that a psychoanalyst who had been interviewed by a reporter regarding his relationship with the Sigmund Freud archives had established a prima facie case of defamation, based on evidence that his remarks had been taken out of context and quotation marks used around comments that he had not made.

Edmon wrote:

“Crediting (as we must for anti-SLAPP purposes) Nelson’s account of the interview, we conclude that Dohrmann’s statement that Nelson confirmed some of the incidents described by the article and expressed regret would support a finding of actual malice. As in Masson, the alleged falsity is not the words spoken by Nelson, but the context in which the words are placed. As reported by Dohrmann, Nelson appears to be admitting and apologizing for each of the incidents described in the article. But Nelson says these incidents never happened and more significantly for our analysis that Dohrmann never asked him about them. Although Nelson concedes he made the quoted statement, he says it was in response to Dohrmann’s inquiry as to how he felt about his suspension and expulsion from the team, not an inquiry about the particular incidents described in the article. This difference is material because it significantly changes the meaning of Nelson’s admission and apology. As such, it would support a finding of actual malice.”

The case is Nelson v. Time, Inc., B245412.

The new debtors prisons: Pennsylvania mother dies while jailed for truancy fines

Laura Clawson

Daily Kos staff

Jun 12, 2014

The new debtors prisons: Pennsylvania mother dies while jailed for truancy fines

If you thought debtors prison was something straight out of Charles Dickens—and something long ago left behind us—think again. Debtors prison is becoming very much a part of the American prison-industrial complex, and on Saturday, a Pennsylvania mother of seven died there:

Eileen DiNino, 55, of Reading, was found dead in a jail cell Saturday, halfway through a 48-hour sentence that would have erased about $2,000 in fines and court costs. The debt had accrued since 1999, and involved several of her seven children, most recently her boys at a vocational high school. "Did something happen? Was she scared to death?" said District Judge Dean R. Patton, who reluctantly sent DiNino to the Berks County jail Friday after she failed to pay the debt for four years.

While dying in jail over truancy fees may be rare, going to jail over truancy fees is all too common, and it disproportionately hits women: "More than 1,600 people have been jailed in Berks County alone—two-thirds of them women—over truancy fines since 2000, the Reading Eagle reported Wednesday." Of course it goes without saying that people who go to jail over $2,000 in fines accumulated over years are not wealthy. Increasing court fees get added to fines—DiNino owed money for things like postage and a "judicial computer project"—often creating a cycle of debt owed to the state that it's almost impossible for low-income people to escape, no matter how hard they work to avoid incurring further debt. Somehow the answer our criminal system has arrived at is to spend money jailing people because they owe the system money they cannot afford to pay. And that's why Eileen DiNino died in jail.

Billionaire Gets Four Months for Sexual Assault of a 12-Year-Old Girl

Ironically, this case seems to indicate that girls in wealthy families receive less protection from the justice system than girls in poor families because rich stepfathers must be protected from jail time.

Are you hearing this, women of wealth?  Are your daughters fair game for sexual predators with money? 

It looks like the victim in this case may have been paid not to testify.  Maybe it's time to put some protection for stepdaughters in prenups. 

Mr. Johnson's company owns Windex, Pledge, and Ziplock. 
SC Johnson and Son says it's "goal is to make homes better 
for families."

Billionaire Gets Four Months for Sexual Assault of a 12-Year-Old Girl

by Richard Riis 

Richard Riis

Daily Kos

Jun 08, 2014

 

“Affluenza” has struck again.
Samuel Curtis “S. C.” Johnson III, the 59-year-old billionaire heir to the S. C. Johnson & Sons (formerly Johnson’s Wax) fortune, who confessed to repeatedly sexually assaulting his teenage stepdaughter, has received an prison sentence of only four months from Racine County Circuit Justice Eugene Gasiorkiewicz, citing the Johnson family’s importance in the community.
Johnson pled guilty to mere misdemeanor charges of fourth-degree sexual assault and disorderly conduct instead of felony sexual assault on a minor child. The victim told police Johnson was “a sex addict” and touched her inappropriately 15 to 20 times beginning when she was 12 years old. The stepdaughter has since moved to North Carolina and was unwilling to return to Wisconsin to testify in the case.
Johnson’s attorney, Michael F. Hart, that the maximum prison term for his client was not fair and should be reserved for “maximum defendants,” people unlike his client (read: not billionaires), who has no prior record and who leads a “productive life.”

 [Maura Larkins' comment:  a "productive life"?  Really?  What does Mr. Johnson produce?  Doesn't the lawyer really mean that Mr. Johnson enjoys his life more than other men who rape their step-daughters?  

Isn't he saying that people who are fortunate should be punished less than the average guy?  

Ironically, this case also seems to say that girls in wealthy families deserve less protection than girls in poor families.  Are you hearing this, women of wealth?]

Judge Gasiorkiewicz agreed and gave Johnson a fine of $6,000 and four months in prison. The judge ruled that he must serve at least 60 days of the sentence before he will be eligible for release.
This decision comes fast on the heels of several other high-profile cases in which justice has been perverted in favor of the very wealthy.
It was the case of Ethan Couch that gave us the “affluenza” defense. Couch, the son of a wealthy Texas businessman, fled the scene after he killed four people in a drunk driving accident and received only ten years’ probation from Judge Jean Boyd, thanks to his attorney’s argument that the teen suffered from “affluenza” and failed to grasp the consequences of his actions. Couch is now attending a very expensive, very prestigious rehab center, paid for not by his multi-millionaire parents but by the taxpayers of Texas.
Last month, a Washington state judge failed to sentence wealthy businessman Joshua Shaun Goodman, arrested for his seventh DUI and for leading police on a 100 mph chase through Olympia, that ended when he crashed into a home, to any jail time. The reason? According to Judge James Dixon, giving Goodman jail time “wouldn’t be fair for him.” The judge even gave Goodman permission to travel to New York and attend the Super Bowl while his case was being adjudicated.
Du Pont heir Robert H. Richards IV, had his sentence of eight years in prison for raping his daughter repeatedly between the ages of 3 and 5 as well as molesting his son starting at the age of 19 months, suspended by Delaware Superior Court Judge Jan Jurden. Why? Jurden thought the rapist “would not fare well” in prison. In 2009 Richards was placed on eight years' probation and ordered to attend an inpatient psychiatric program at MacLean Hospital in Massachusetts. As of April 2014 court records show that Richards has yet to appear for treatment.
While it is still a sad fact that justice in America is unequal for black and white, the color the system increasingly panders to most outrageously is green.

Originally posted to Richard Riis on Sun Jun 08, 2014 at 05:23 AM PDT.

Also republished by Badger State Progressive and This Week in the War on Women.

San Diego Superior Court provides no reporters for civil cases--but it's building a brand new courthouse. Justice doesm't seem to be the top priority here.

What is said by the judge and the litigants in Superior Court is a critically important part of the case record.

The court's ability to dispense justice is impaired by the budget-driven decision to stop providing court reporters in civil cases.

But it now seems that the Court's decision to stop paying for court reporters might have been political. It seems that a whole lot of money is available to the San Diego Superior Court, but it's being used to build a new courthouse BEFORE restoring a service as basic as court reporters.

The developers must be very happy--as well as their friends in positions of power.

Now I understand why people have been complaining about car allowances for judges.

Why aren't San Diego Superior Court judges raising their voices in a united, ear-shattering cry for a return to basic court services before building a new courthouse?


Los Angeles Superior Court also stopped providing court reporters in most civil cases:

EFFECTIVE JUNE 14, 2013: The Los Angeles Superior Court will no longer provide court reporters for general jurisdiction civil matters, except in the writs departments – 82, 85 and 86 - located in the Stanley Mosk Courthouse. The writs departments will continue to use the established matrix for court reporter assignments.

$555M courthouse construction beginning

22-story building downtown will replace 1961 county courthouse in 2016
By Roger Showley
SDUT
Feb. 21, 2014

The new courthouse will rise 22 stories and 389 feet on the block bounded by State, Union, B and C streets. Note top cornice which doubles as a shade structure for the east-facing corridors. — Skidmore, Owings & Merrill

San Diego will break ground next month on its most expensive public office building ever: The $555.5 million, San Diego Central Courthouse.

Funded from increased court fines and fees, the 704,000-square-foot building at Union and C streets downtown will replace the obsolete county courthouse that opened 53 years ago.

“I think, in part, we live in a very different world than when the current buildings we occupy were built,” said David J. Danielsen, presiding judge of the San Diego Superior Court. “I don’t think any of us had any clue way back in the day of the potential danger of asbestos. I don’t think anybody ever designed a building with modern terrorists in mind.”

Due for completion in 2016, the building also breaks the mold in courthouse design. No more Classical columns or bell towers, such as those that existed in earlier San Diego courthouses. This courthouse is a 22-story skyscraper — 389 feet tall...


Judges keep car perks
Despite enormous service cutbacks, Superior Court maintains nearly $1 million in vehicle allowances
By Dave Maass
City Beat
Sep 25, 2012

...“The cuts envisioned by our budget reduction plan will affect every judge, court employee and ultimately the litigants, court users and citizens in San Diego County,” Presiding Judge Robert Trentacosta said in a June statement. “These cuts will significantly reduce or eliminate access to our court system and are devastating to those of us who have worked so hard to convince the Governor and Legislature that such cuts threaten the stability of our third branch of government.”

The California budget crisis has trickled down to the local justice level, with the San Diego County court looking to make up a $33-million shortfall in what had been a $190-million budget. The court was ordered to drain its rainy-day reserves—roughly $22 million—leaving $11 million left to slice in the coming fiscal year, with even bigger cuts predicted in the next cycles.

As fall arrives, the court has begun shutting down outlying courtrooms, shortening hours, laying off some employees and furloughing others.

But the Superior Court did not cut one line item: nearly $1 million per year in transportation allowances set aside for judges and executive managers.

...The court has shut down probate-court operations and a juvenile-dependency courtroom in Vista. The Ramona court facility was shuttered, and six criminal courtrooms and one civil courtroom were closed at the Downtown courthouse. Employees are being forced to take 24 unpaid furlough days during the next two years. The court also plans to close down civil courtrooms in East County and South County, remove court reporters from civil cases and lay off at least 60 employees.

“At a time when we are asking all levels of government to reduce spending, any and all additional perks should be scrutinized for potential savings,” Chris Cate, vice president of the San Diego County Taxpayers Association, wrote in an email reacting to CityBeat’s research. “Taking into account total compensation, these car allowances should be the first item eliminated as a means to reduce spending by close to $1 million.”

This is one of the few occasions when the Taxpayers’ Association and public-employee unions are on the same page.

“A benefit such as a car allowance is quite a luxury, especially in these economic times and especially in the public sector in California,” says Michelle Castro, California director of government relations for Service Employees International Union. So far, 27 of the 125 court reporters represented by the union are being laid off...

California attorney's oath

Attorney’s Oath

I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.


California Business and Professions Code Section 6068

It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

(2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.

(g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.

(h) Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.

(i) To cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself. However, this subdivision shall not be construed to deprive an attorney of any privilege guaranteed by the Fifth Amendment to the Constitution of the United States, or any other constitutional or statutory privileges. This subdivision shall not be construed to require an attorney to cooperate with a request that requires him or her to waive any constitutional or statutory privilege or to comply with a request for information or other matters within an unreasonable period of time in light of the time constraints of the attorney's practice. Any exercise by an attorney of any constitutional or statutory privilege shall not be used against the attorney in a regulatory or disciplinary proceeding against him or her.

(j) To comply with the requirements of Section 6002.1.

(k) To comply with all conditions attached to any disciplinary probation, including a probation imposed with the concurrence of the attorney.

(l) To keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline.

(m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.

(n) To provide copies to the client of certain documents under time limits and as prescribed in a rule of professional conduct which the board shall adopt.

(o) To report to the agency charged with attorney discipline, in writing, within 30 days of the time the attorney has knowledge of any of the following:

(1) The filing of three or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity.

(2) The entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.

(3) The imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).

(4) The bringing of an indictment or information charging a felony against the attorney.

(5) The conviction of the attorney, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.

(6) The imposition of discipline against the attorney by a professional or occupational disciplinary agency or licensing board, whether in California or elsewhere.

(7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney.

(8) As used in this subdivision, "against the attorney" includes claims and proceedings against any firm of attorneys for the practice of law in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has to the attorney's knowledge already been reported by the law firm or corporation.

(9) The State Bar may develop a prescribed form for the making of reports required by this section, usage of which it may require by rule or regulation.

(10) This subdivision is only intended to provide that the failure to report as required herein may serve as a basis of discipline.

Vote in Carla Keehn in place of Lisa Schall for Judicial Office 20, and Brad Weinreb for Office 25, but keep Prager and Popkins

 Update April 2016:

Carla Keehn is challenging Keri Greer Katz, daughter of judge Michael Greer, in 2016 election for Superior Court Judge

 Original post:

Superior Court Judge; Office 9 • Ronald S. Prager

Superior Court Judge; Office 19 • Michael J. Popkins

Superior Court Judge; Office 20 • Carla Keehn: This race receives special attention. Keehn is running against the incumbent Lisa Schall. The problem with Schall is that during her term as judge she has been admonished three times by the state Commission on Judicial Performance. After 30 years on the bench it is time for a change. Vote for Keehn

Superior Court Judge; Office 25 • Brad Weinreb

Brad Weinreb, a state deputy attorney general for more than 20 years, was rated by the Bar as “qualified.” He has extensive experience in major criminal cases and claims one of the highest active caseloads in death penalty cases. He won the endorsement of Goldsmith, Gore, Chula Vista Police Chief David Bejarano, county Public Defender Henry Coker, numerous organizations and some 50 current judges. Both his opponents, Michele Hagan and Ken Gosselin, received the lowest rating of “lacking qualifications” from the Bar. And Gosselin has been accused of misleading voters about his education and experience.

Superior Court Judge; Office 44 • Joseph Adelizzi (SDER choice to replace incumbent Judge Jacqueline Stern)

Judge has been admonished three times
No jurist in the state has a less favorable record
By Greg Moran
U-T San Diego
May 12, 2014

The campaign website for San Diego Superior Court Judge Lisa Schall touts her three decades of experience on the bench, including assignments in every division of law, from criminal courts to probate matters and family law.

What it doesn’t talk about is Schall’s record of discipline with the state agency that oversees judges.

No other active judge among the state’s 1,827 judges on the Superior Court, appeals court and Supreme Court bench has been publicly disciplined more times than Schall has, a review of disciplinary records from the Commission on Judicial Performance shows. She has received two public admonishments and one private admonishment.

Only one other judge, in Contra Costa, has a similar record.

Schall said the record involves three incidents over a nearly-30-year career on the bench, that she has learned from her mistakes, and that her work record has earned her the continuing support of the legal community.

The record shows Schall has been publicly admonished twice, most recently in March 2008 when she pleaded guilty to an alcohol-related driving charge. A public admonishment is the third most-serious level of punishment the commission can hand out, behind only public censure and removal from the bench.

She was stopped while driving the wrong way on Centre City Parkway in Escondido in September 2007 and found to have a blood-alcohol level of 0.09. That is just over the legal limit.

The arrest came just months before she was up for re-election to her fourth term and was not made public at the time. Court records show the case was delayed for six months, and Schall pleaded guilty to a lesser offense — one week after the filing period for a candidate to run against her had closed.

Under state election law, if a sitting judge does not draw a challenger during the filing period, they are deemed automatically re-elected to the office for another term.

Both the judge and her attorney, William Wolfe, said she was not given any special consideration and that Schall did not seek to delay the disposition of the case until after the filing period.

Shall said this week she was dealing with a divorce and caring for her elderly parents at the time of the DUI arrest. She said that is not an excuse, and has apologized to colleagues and family since.

“I took ownership of that,” she said. “I didn’t try to hide it or cover it up.”

Schall was also publicly admonished in 1999 for abusing her power and not following the law when she jailed a woman for five days for contempt of court. The woman was disruptive in the courtroom during a hearing on a restraining order and was taken out of the courtroom.

When the woman said to Schall’s bailiff that she would “go off” if not allowed to tell her story, Schall cited her for contempt without holding a hearing or making factual findings — and when the woman was not in the courtroom.

In 1995 Schall received a private admonishment from the commission for what commission records describe as “her embroilment in a juvenile dependency matter.” Schall said during a child welfare case she was told an appellate lawyer for one parent had been revealing confidential testimony from the court proceedings. She held a hearing with the appellate lawyer and others to find out what had happened, and the commission concluded that was wrong.

...The disciplinary commission has doled out public admonishments just 75 times since 1995 to 22 judges, records show. Several judges who received two public admonishments either retired or were removed by the commission after the second...

Oral arguments took place May 16, 2014 in Stutz V. Larkins defamation case; James Holtz did not appear

I was very nervous yesterday when I made my oral argument before the Court of Appeal, but apparently James Holtz was even more nervous. He didn't show up at all, nor did any of the other Stutz Artiano Shinoff & Holtz attorneys who have been involved in this case. James Holtz had been appearing frequently in the Superior Court hearings in the case, but he was nowhere in sight on Friday.

Stutz law firm sent a new contender, Scott Ingold, to do the honors.

Mr. Ingold spoke smoothly, while I had a couple of embarrassing pauses. Mr. Ingold seemed detached, which was appropriate. It would have been unseemly for him to get up on his high horse when the whole case was based on a summary adjudication based on a technicality, devoid of any weighing of evidence.

In February 2009 Judge Hayes threw out my opposition because of a small mistake in format. Then, based on this technicality rather than a jury verdict, Judge Hayes issued a couple of unlimited injunctions. One was thrown out by the Court of Appeal in 2011 for being an overly broad prior restraint on speech.

Now the other injunction is at issue. Here's how Judge Hayes explained this injunction in June 2012: "I'm not giving you permission to put anything on [your website]." In other words, it's exactly the same injunction that was found "exceedingly broad" by the Court of Appeal in 2011.

The Presiding Justice pointed out to Mr. Ingold that there didn't seem to be any information in the record about my financial condition. A showing of my ability to pay should have been required by Judge Judith Hayes of the San Diego Superior Court before she approved punitive damages against me.

But perhaps Judge Hayes wasn't focused on such small details after granting a default to Plaintiff FIVE YEARS AFTER I FILED MY ANSWER--and four years after she had granted summary adjudication with NO weighing of evidence. I paid my jury fees and asked repeatedly over the years for a jury trial on damages, but was always ignored or refused. The judge didn't want a jury trial on damages; she wanted a default.

Young Mr. Ingold admitted that he, too, had failed to find any evidence in the record of my financial condition, but he insisted that I should pay punitive damages anyway. I didn't bother to say anything in response to that.

I did respond when Mr. Ingold said that there was no evidence in the record about my negotiations with James Holtz on April 6, 2009 (regarding the agreement I signed that day). I pointed out that there were multiple declarations signed by me under penalty of perjury in the record, and that Mr. Holtz had never denied the truth of my declarations. I'm guessing that James Holtz didn't want to discuss this issue in person.

See all posts re Stutz v. Larkins in San Diego Education Report Blog.

Union-Tribune endorses Judge Lisa Schall, then reports that "No jurist in the state has a less favorable record" than Judge Schall

Incumbent Judge Lisa Schall [U-T file] — Charlie Neuman

The apparent contradiction in San Diego Union-Tribune articles about Judge Schall actually make perfect sense. The U-T is saying that it's better to have a bad Republican than a good Democrat. The U-T thinks it's okay for a judge to improperly throw citizens in jail, to become embroiled in juvenile dependency cases, and to drive drunk, as long as the status quo is maintained in the courts.

I think it should also be noted that the three official admonishments of Judge Lisa Schall don't tell the whole story. The Commission on Judicial Competence is often loathe to criticize judges even when they behave very badly.

This article from the Los Angeles Times from September 1986 recounts how the judge, shortly after being appointed, showed her gratitude to Governor George Deukmejian by appearing at one of his campaign events.

The article notes, “[Mike] Aguirre filed a complaint with the California Commission on Judicial Performance alleging that Guy-Schall’s talk was a violation of judicial ethics guidelines that prohibit judges from endorsing or campaigning for candidates for non-judicial office.”

Apparently Schall did NOT get a reprimand for this shockingly inappropriate behavior, which makes me wonder if there were also other complaints against Judge Schall to the Commission on Judicial Performance that failed to result in admonishments.

See also: After 2 days, Clear Channel pulls down billboards that reveal that Judge Lisa Schall was convicted of a crime

Judge has been admonished three times
No jurist in the state has a less favorable record
By Greg Moran
SDUT
May 12, 2014

Private admonishments are issued by the commission in cases where serious misconduct has been found, but are confidential and only become public if revealed in future disciplinary matters.

Her opponent in the race, federal prosecutor Carla Keehn, is making an issue of Schall’s record. This week billboards went up saying Keehn was the “only candidate for this office NOT convicted of a crime.”

“I think a judge should be above reproach,” Keehn said “Judges should set the standard for law abiding behavior.”

The disciplinary commission has doled out public admonishments just 75 times since 1995 to 22 judges, records show. Several judges who received two public admonishments either retired or were removed by the commission after the second.

Schall said voters should assess her ability over a full career and based on what her peers and others say.

She has been rated well qualified, the highest rating, by the county bar association, she said. All of the Superior Court bench has endorsed her. Keehn received a rating of qualified, the second highest of three rating categories.

Schall has been a judge for nearly 29 years. She was first appointed to the now defunct Municipal Court bench in 1985 at age 32, then elevated to the Superior Court bench in 1989. She has been re-elected four times to six-year terms and has never been challenged, until this year when Keehn decided to run against her.

Private admonishments are issued by the commission in cases where serious misconduct has been found, but are confidential and only become public if revealed in future disciplinary matters.

Her opponent in the race, federal prosecutor Carla Keehn, is making an issue of Schall’s record. This week billboards went up saying Keehn was the “only candidate for this office NOT convicted of a crime.”

“I think a judge should be above reproach,” Keehn said “Judges should set the standard for law abiding behavior.”

The disciplinary commission has doled out public admonishments just 75 times since 1995 to 22 judges, records show. Several judges who received two public admonishments either retired or were removed by the commission after the second.

Schall said voters should assess her ability over a full career and based on what her peers and others say.

She has been rated well qualified, the highest rating, by the county bar association, she said. All of the Superior Court bench has endorsed her. Keehn received a rating of qualified, the second highest of three rating categories.

Schall has been a judge for nearly 29 years. She was first appointed to the now defunct Municipal Court bench in 1985 at age 32, then elevated to the Superior Court bench in 1989. She has been re-elected four times to six-year terms and has never been challenged, until this year when Keehn decided to run against her.

HERE IS THE ENDORSEMENT OF THE UNION-TRIBUNE:

FOR THE SAN DIEGO COUNTY SUPERIOR COURT BENCH
By U-T San Diego Editorial Board
May 12, 2014
The only real decision for voters is in Office 20. Incumbent Judge Lisa Schall is a former prosecutor who has been on the bench since her appointment by Gov. George Deukmejian in 1985. She received the Bar’s highest rating of “well qualified,” and she has the endorsement of virtually all other judges on the bench, numerous retired judges, Goldsmith, Coker and a variety of professional organizations. But she has been admonished three times by the state Commission on Judicial Performance, including once for her guilty plea in 2008 to alcohol-related reckless driving. Her opponent is Carla Keehn, a former Army captain and an assistant U.S. attorney for the past 18 years who was rated as “qualified” by the Bar. The admonishments Schall received are a legitimate issue for voters to consider. The U-T editorial board believes her overall solid record of 29 years on the bench trumps those controversies. We endorse Judge Schall for re-election.

[Maura Larkins's response: "Overall solid record" of doing exactly what? Protecting friends of U-T owner Doug Manchester?

Sharon Kramer May 12, 2014 at 10:55 am

Does the UT have a typo in their story yesterday? They wrote of Schall, “overall solid record of 29 years on the bench”. Surely they meant to write, “overall SOILED record”.

Updates on San Diego Reader story about Stutz Artiano Shinoff & Holtz v. Larkins

The San Diego Reader has finally allowed me to correct an error and add some crucial information to a June 26, 2013 article about me:

1. There was no weighing of evidence involved in Judge Judith Hayes' decision that I had defamed Stutz law firm. The judge's decision was based on a technicality--that I hadn't used the updated format in my opposition to summary adjudication--so the decision was not based on fact. Stutz won the decision automatically when my opposition was thrown out.

2. Regarding the Vito Corleone error: documents show that I was not the author of the Vito Corleone quote.

Here are my comments on this story in the San Diego Reader:

MauraLarkins May 11, 2014 @ 11:45 a.m.

I liked Mr. Hargrove's article about me, but I would like to correct one error. In fact, the comment about Vito Corleone was not written by me, but rather by an anonymous visitor to my website. Mr. Hargrove's mistake can be explained by the fact that Judge Judith Hayes ignored the documentary evidence (exhibits that included printouts of my blog) when she issued a decision saying that I had published the comment!

In fact, I don't believe that Dan Shinoff makes Vito Corleone look like an altar boy. I'd say the exact opposite: that Vito Corleone makes Dan Shinoff look like the personification of moral purity.

I bear no malice toward Mr. Shinoff. I simply believe that the public has a right to know what our tax dollars are paying for, and how our schools are being run.

MauraLarkins May 12, 2014 @ 10:02 a.m.

There was no trial in this case. In fact, there was no weighing of evidence by the judge, either. Judge Judith Hayes made her decision based ONLY on a technicality: that I hadn't used the updated format when I prepared my opposition to summary adjudication.

My statements were NOT found to be defamatory in fact, but only as a matter of law.

The judge could have weighed the evidence, but she chose not to do so. Why not?

To insulate herself even further from the facts of the case, Judge Hayes also threw out all my evidence. That was overkill, of course, since she had thrown out my opposition to summary adjudication.

MauraLarkins May 12, 2014 @ 4:33 p.m.

The law does NOT allow prior restraint of speech except for statements found to be defamatory "at trial". Judge Hayes did not have the right to deprive me of my constitutional rights without due process. Obviously, throwing out my evidence and my opposition to summary adjudication does not constitute due process.

After 2 days, Clear Channel pulls down billboards that reveal that Judge Lisa Schall was convicted of a crime; also, Judge Schall's website is down (perhaps for changes in her endorsements?)

San Diego 10 News reports that billboards have been taken down by Clear Channel two days after they were put up.

Federal prosecutor Carla Keehn is challenging Judge Lisa Schall in the June 3, 2014 election for San Diego Superior Court judge. The advertisements correctly stated that Judge Schall has been convicted of a crime.

See newscast video on You Tube.

Judge Schall has been admonished three times by the Commission on Judicial Competence. The offenses were political support for the governor who appointed her, abusing her contempt power, and drunk driving.

See all posts on Carla Keehn and Judge Schall.

Judicial candidate Carla Keehn wants to know who took her billboards down

Billboards critical of incumbent Judge Lisa Schall

Joe Little

KGTV

May 12, 2014

SAN DIEGO - A local judicial candidate wants answers after her factually accurate billboard was taken down without any explanation.

Federal prosecutor Carla Keehn recently paid Clear Channel Outdoors $14,000 for four billboards that attack her opponent for Superior Court Judge Seat 20.

Incumbent Judge Lisa Schall has held that seat for almost three decades.

The billboard reads: "Vote Carla Keehn: The only candidate for this office not convicted of a crime. Because no one is above the law, not even judges."

The billboards went up last week and were almost immediately taken down.

"Well, it was a complete surprise," said Keehn. "They would not tell me who or what group told them to bring it down."

Schall has been disciplined three times by a state commission, including once after a DUI in 2008.

Keehn paid Clear Channel for 30 days to share that fact on her billboards. A Clear Channel representative told Keehn the order came from above her to take them down.

"I asked her specifically, 'Can you tell me the name?' She said, 'No.' I asked her, 'Can you tell me the location?' She said, 'No. We've been getting a lot of pressure,'" Keehn recounted.

The same representative declined to speak with 10News. 10News also tried tracking down Schall, whose website was also down Monday.

Keehn said Clear Channel is refusing to give her a full refund.

"They were going to charge us for the whole week and for the cost of tearing all four billboards down," said Keehn.

She's now weighing her legal options.

"We're still reviewing that. It just happened and we're still reviewing and we're still in negotiations with Clear Channel," she said.

A Clear Channel spokesperson issued this statement on the matter:

"Unfortunately our protocol for political ads was not followed and we took the ad down. We have offered the client a variety of resolutions, including the fullest refund allowable under the laws governing political contributions."

Besides the DUI, Schall was also admonished for "abuse of power" in 1999 and for holding an inappropriate hearing in 1995 while working in juvenile court.

Stutz Artiano Shinoff & Holtz is heavily represented on the San Diego Legal Secretaries board

Legal secretaries install 2014-15 board
By DOUG SHERWIN
The Daily Transcript
May 6, 2014

Linda L. Moore of Stutz Artiano Shinoff & Holtz APC was installed last month as president of the San Diego Legal Secretaries Association for 2014-2015.

Other new officers and members of the board of directors include Latham & Watkins' Becky Neidhardt as vice president; McKenna Long & Aldridge's Heather Schlaefli as secretary; Cynthia Halvax of Neil, Dymott, Frank, McFall & Trexler APLC as treasurer; Ann Posthill of Stutz Artiano Shinoff & Holtz APC as governor; Stokes Wagner Hunt Maretz & Terrell's Leanna Pierce as executive advisor; and J. Cori Mandy of Procopio Cory, Hargreaves & Savitch LLP as parliamentarian;

David Merino, Donna Mihalco, Maria Simental of Wingert, Grebing, Brubaker & Juskie LLP, and Procopio's R. Marina Durazo were installed as directors while Merino, Mihalco and Maria Simental were named as annual conference delegates.

Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office

See all posts regarding the Jason Moore/Bonnie Dumanis political prosecution issue.

Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office
By Amita Sharma
KPBS
May 5, 2014

The office said it will decide by Monday whether to release records.

Records concerning a prosecution of Chula Vista officials are at the San Diego County District Attorney's Office after all.

A month ago, officials in the office of District Attorney Bonnie Dumanis said the records requested by KPBS did not exist.

KPBS asked the DA's Office in early March for records, including emails, about a call former Chula Vista Mayor Steve Padilla said he received from Dumanis in late 2005. Padilla said Dumanis asked him to appoint her aide to a vacant council seat.

A recent KPBS story noted that within weeks of Padilla's refusal, Dumanis began investigating the entire Chula Vista City Council without revealing her call to Padilla. In late March, the DA's Office told KPBS it did not possess records related to the request.

KPBS sent another Public Records Act request two weeks ago seeking the same records from Deputy District Attorney Patrick O'Toole. He oversaw the Chula Vista investigations. Within hours, O'Toole wrote that he had the records and sent them up the chain of command for consideration.

The DA's Office also told KPBS in March that records pertaining to the investigation are legally exempt from disclosure.

"To the extent your request is for 'records pertaining to or discussing the Padilla or Castaneda investigation, or any investigation pertaining to this,' these records are exempt from disclosure under the 'investigative files' exemption," wrote Deputy District Attorney Julie Reizen in a letter to KPBS.

Reizen also cited the "deliberative process" privilege.

But Peter Scheer, executive director of the California First Amendment Coalition, said neither of those exemptions apply to records such as emails discussing the call to Padilla, or how it might have affected subsequent investigations.

"The communications, the email communications that raised questions or doubts, were not part of the investigative file for the prosecution," Scheer said. "The deliberative process privilege is a much abused, very broad privilege. They have to justify a determination that the public interest in keeping it secret outweighs the public interest in making it public. There's no reason to keep it secret except to avoid embarrassment."

Scheer added that even if the records were legally exempt from disclosure, Dumanis could choose to release them.

The DA's Office said it will decide Monday whether to release the emails.

San Diego’s Post-Kreep Judicial Landscape: A Reader’s Guide

See all posts on electing judges.

San Diego’s Post-Kreep Judicial Landscape: A Reader’s Guide
By: Ari Bloomekatz
Voice of San Diego
May 2, 2014

...This time around, San Diego will have to settle for a candidate who’s defended white supremacists pro bono and once wrote that a judge he was facing should be disqualified “by virtue of her permanent disability as a Negro racist;” and an incumbent with a drunk-driving conviction who was also admonished by a state commission for incorrectly putting a woman in custody for five days.

Those are two Superior Court candidates in five of the contested races – where an incumbent judge faces at least one challenger – for the June 3 election. Another 42 races for the bench are uncontested, meaning the sitting judge doesn’t have an opponent and will coast to another six-year term.

...There are currently 125 active Superior Court judges in San Diego County. Generally speaking, Superior Court judges are first appointed by the governor, but those judges can be challenged in the following election cycle.

The Contested Races

Office No. 9

Incumbent: Judge Ronald S. Prager ["well qualilfied"]

Challenger: Attorney/recycler Douglas Crawford ["lacking qualifications"; found culpable on one count of professional misconduct.]

Office No. 19

Incumbent: Judge Michael J. Popkins

Challenger: U.S. Justice Department attorney Paul Ware

Office No. 20

Incumbent: Judge Lisa Schall[officially admonished for campaigning for the governor who appointed her and wrongly jailing a woman, drunk driving]

Challenger: Federal prosecutor Carla Keehn

Office No. 25

The incumbent, Judge Cynthia Bashant, was recently confirmed as a U.S. District judge, so this is now an open election.

Challengers: Attorney/court volunteer Ken Gosselin, attorney [Bar Assoc. says "lacking qualifications"]/
fraud examiner Michele Hagan [Bar Assoc. says "lacking qualifications"] and
Deputy Attorney General Brad A. Weinreb

Gov. Jerry Brown could technically fill Bashant’s now-open seat, a court official said, but that is unlikely because there are people running in the election. The court official said there are currently seven more open bench seats that have not been filled, likely because of funding issues.

Office No. 44

Incumbent: Judge Jacqueline M. Stern

Challenger: Attorney Joseph Adelizzi

The Candidates

There are 11 candidates in the five contested Superior Court races and of those, the San Diego County Bar Association rated three – Crawford, Gosselin and Hagan – as “Lacking Qualifications.”

Of those three, Crawford has received the most attention recently because of a legal statement he penned in 2011 arguing the National Association for the Advancement of Colored People is a “militant, ‘black power’ organization” and that Judge Randa Trapp, who is black, should be disqualified from a particular case because she has a “racist bias and prejudice in favor of negroes and against whites.”

“Moreover, Crawford is well known in the legal community as an attorney that openly and vocally supports white supremacy causes by providing pro bono legal counsel to white supremacists,” Crawford wrote about himself, according to a copy of the legal statement.

“Plaintiff’s attorney contends that Judge Trapp will be unable to properly perceive the evidence and/or properly conduct the proceedings by virtue of her permanent disability as a Negro racist,” he wrote.

Crawford said recently that if he “could go back in time, I would never represented the client.” He said he does not share any white supremacist philosophies and was only doing his best to help his client at the time.

Crawford also has his own case pending in the State Bar Court – which hears attorney misconduct complaints – where he has been found culpable on one count of professional misconduct.

The misconduct, according to court records, refers to a threat Crawford allegedly made that he would have his client trigger a federal audit against their opponents if they didn’t start settlement talks.

He is challenging that ruling.

Crawford said he knows he’s not a traditional judicial candidate and that he “would never have a chance in any way, shape or form of ever being appointed to the bench,” which is why he decided to run.

He says his nickname is “Dirty Doug” because he prefers junkyards and fixing cars to working in courthouses.

Meanwhile, the Bar Association ranked three of the four incumbent judges as “Well Qualified” and the last, Stern, as “Qualified.”

Of those four, Schall – ranked as “Well Qualified” – is the only one who has been called out (and not in a good way) by the state Commission on Judicial Performance.

Schall was first appointed by Gov. George Deukmejian in the 1980s and says she is facing her first contested race.



According to court records, Schall received a private admonishment in 1995 related to her involvement in a juvenile dependency case.

Then in 1999, she was admonished for “an abuse of the contempt power” after incorrectly ordering a woman into custody for five days, according to a copy of the admonishment.

And about a decade later, Schall was again admonished by the commission after she was arrested and found guilty of drunk driving. According to a copy of that admonishment, Schall had a blood alcohol level of approximately 0.09 percent after she drove on the wrong side of an Escondido highway.

Schall said that it has been about seven years since her drunk-driving conviction and that she has “been a better judge out of that very bad choice that I made.”

Schall said she was going through a divorce at the time and her parents’ health was declining. She said that she served her probation and sometimes speaks at civic events about the dangers of drunk driving.

Schall said two of the other admonishments had to do with not following proper procedures.

Schall’s challenger is, unsurprisingly, using the drunk-driving conviction and admonishments as part of a platform.

“Ninety-nine percent of all judges get through their entire careers with nothing and that’s how it should be,” Keehn said. “This is the first election to hold Judge Schall accountable not just for her three judicial admonishments, but her criminal conviction.”

Elected vs. Appointed

By the time California became a state in 1850, much of the country had already moved toward the popular election of judges.

“The idea was to make government as inclusive and democratic as possible … in terms of white men … and the idea of electing judges fit right in with that idea,” said Reuel Schiller, professor of Law at UC Hastings.

But at the beginning of the 20th century, there was a radical change: People started to want partisan politics out of government, Schiller said.

So California developed a sort-of hybrid system where judges would generally be initially appointed by the governor with approval by a commission and then those judges would eventually face voters.

“In some ways Californians have tried to split the difference,” said Schiller.

The debate over whether Superior Court judges should be elected or appointed recurs nearly every election cycle.

Jon Williams, head of the San Diego County Bar Association, said candidates who run for a bench seat avoid the usual vetting that would occur if they were appointed.

“It’s been my observation that there is more interest these days in obtaining the position of judge through the election process,” Williams said. “Back in the day, you didn’t see as many people raising their hand to challenge a sitting judge.”