Judicial Retention Elections

By George Nicholson

Every four years, many voters and their friends and families wonder, "Who are these supreme court and court of appeal justices for whom I am asked to vote? How can I learn something about them? And what are these supreme and appellate courts anyway?" This paper was prepared by the California Judges Association to answer these questions.

Court of Appeal, State of California, Third District November 1998

The materials which appear below, as refined to assist voters in the Third Appellate District, are the work product of the Public Education Subcommittee, Appellate Courts Committee, California Judges Association.

Three members of the Court of Appeal, State of California, Third District, Connie M. Callahan, Harry Hull., and George Nicholson, are on the November 3, 1998 general election ballot for retention by voters. The Third District conducts court in the Library & Courts Building, 914 Capitol Mall, Sacramento, CA. The district is comprised of 23 counties and stretches from Oregon to Mammoth Lakes and from Nevada to about two-thirds of the way to the Pacific Ocean. (To determine whether you are in the Third District, see the map of California in the Secretary of State's Judicial Information Booklet which can be obtained hardcopy or viewed on the Internet as explained below.)

The following Preface presents an introduction to the ensuing materials which have been compiled and written for a lay audience and are designed so readers may share them with their friends and families as an introduction to Justices Callahan, Hull, and Nicholson, and the appellate courts, and as a guide to how and where everyone may obtain other information about all the supreme and appellate court justices on the ballot in November 1998, as well as further information on the supreme and appellate courts themselves.

Preface

Every four years, many voters and their friends and families wonder, "Who are these supreme court and court of appeal justices I am asked to vote for? How can I learn something about them? And what are these supreme and appellate courts anyway?"

These are important questions. In past elections, there were no conveniently available answers. Things are different this year. Working together, the Secretary of State's Office and the Judicial Branch are providing biographical information about the justices along with an overview of the appellate court system and what it does. This information will be available on Internet websites operated by the Secretary of State (http://Vote98.ss.ca.gov/Judges98/JudicialGuideFrameset.html) and the Judicial Branch (http://www.courtinfo.ca.gov/3rdDistrict/), while the Secretary of State has published the Judicial Information Booklet, which it will mail to voters who call 1(800) 345-VOTE, enter 7, and request it. And, as to supreme court justices, the Secretary of State will include biographical sketches on each justice in the official statewide voter pamphlet.

To provide further assistance to citizens and their friends and families, the Sacramento Bee has published relevant information on its convenient Internet website which may be quickly and easily reached at (http://www.sacbee.com/campaign98/judiciary/index.html). The Stockton Record has done likewise at (htpp://http://www.recordnet.com/daily/election98.html).

The following materials are designed to be copied and handed over to anyone who asks about the forthcoming appellate retention elections.

Appellate Retention Elections: What They Are and How to Learn More about the Appellate Courts and the Justices Who Serve on Them

Every four years, more than a third of California's 93 court of appeal justices face California voters for retention. This year, that comes to 40 justices. In addition, four of the seven justices on the California Supreme Court face retention elections in 1998. No one may run against the justices. Voters simply decide yes or no. If a majority of voters cast "yes" votes for a particular justice, that justice remains for another term.

Because supreme court justices hold statewide offices, voters everywhere in California decide whether to retain them. In contrast, because court of appeal justices serve in districts, voters in each district alone decide whether to retain them. California's 93 court of appeal justices are divided among six districts, centered in San Francisco, Los Angeles, Sacramento, San Diego, Fresno, and San Jose. While there are 10 appellate justices in the Third District (Sacramento), which is comprised of the 23 counties located in the northeastern part of the state, only three of those justices are on the November ballot, Connie M. Callahan, Harry Hull, and George Nicholson. California's appellate judiciary is widely respected as diverse, well-trained, and collegial.

Supreme and appellate court justices generally do not actively campaign for retention. The only promise they can make voters is to decide appeals impartially and according to the law, without fear or favor toward any individual or group. However, they do seek to provide helpful information to voters. This year, the justices have worked closely and actively with the Secretary of State's Office to help the public learn more about the appellate courts, who the appellate justices are, and what they do.

As a consequence, and for the first time, voters everywhere in California can easily get biographical information on every justice who appears on the ballot in November 1998. As to supreme court justices, the information will be in the statewide ballot pamphlet sent to all voters by the Secretary of State. As to court of appeal justices, the official statewide voter pamphlet will not contain biographical sketches, but it will refer voters to an Internet website and a toll-free telephone hotline so they may obtain justices' biographies, either on-line or through receipt of the Judicial Information Booklet on request. The Secretary of State's Internet website and Judicial Information Booklet will include brief descriptions of the appellate courts and how they differ from trial courts.

To gain access to these materials, voters may go to the Secretary of State's Internet website at http://Vote98.ss.ca.gov/Judges98/JudicialGuideFrameset.html or call his telephone hotline at 1(800) 345-VOTE, enter 7.

While supreme and appellate court justices perform their roles quietly and without fanfare, the public can find much of their work published in law books titled "California Reports," "California Appellate Reports" and "California Reporter." Each of California's 58 counties has a public law library containing these books, as do law schools and most law offices. These law books are also available to the public in the Bernard E. Witkin State Law Library in Sacramento. Recently published opinions are available on the same day they are filed on the official Judicial Branch Internet website, "California Courts: The Judicial Branch of California," at http://www.courtinfo.ca.gov/ which is maintained by the Administrative Office of the Courts (AOC), State of California.

Adding to the data supplied by the Secretary of State, the Judicial Branch's website also contains biographical information about all supreme court and appellate court justices, including those on the 1998 general election ballot. Additional resources, "How Appellate Justices are Selected" and "What Appellate Justices Do," appear on the Judicial Branch's official website in the section pertaining to the Court of Appeal, Third District, at http://www.courtinfo.ca.gov/3rdDistrict/.

How Appellate and Supreme Court Justices are Selected

The office of appellate or supreme court justice is nonpartisan. To be eligible to serve in either position, a person must have practiced law for at least 10 years.

Before a person can become an appellate or supreme court justice, the Governor must submit the person's name to the California State Bar's Commission on Judicial Nominees Evaluation, which is comprised of public members and lawyers who reflect the ethnic, sexual and racial diversity of the population, and must include persons of a variety of backgrounds, abilities, interests, and opinions. With community input, the Commission conducts a thorough review of the candidate's background and qualifications, and forwards an evaluation to the Governor.

The evaluation assesses the candidate's character, reputation, common sense, knowledge, legal skills, professional experience, objectivity, ethics, ability to make difficult decisions, work ethic, temperament, and integrity.

After receiving the Commission's evaluation and concluding the person is qualified for appointment, the Governor may nominate the person to become an appellate or supreme court justice.

The nominee's qualifications are then reviewed by the Chief Justice of California, the Attorney General of California, and a senior presiding justice of the California Court of Appeal. Sitting as the Commission on Judicial Appointments, they conduct a public hearing. The public is invited to comment and speak at the hearing in support of or in opposition to the appointment. Letters received by the Commission in support of or in opposition to the appointment are received and considered by the Commission and are acknowledged publicly at the hearing. If the Commission finds the nominee is qualified to serve, it confirms the nomination. Following confirmation, the person takes the oath of office and becomes an appellate or supreme court justice, as the case may be.

An appellate or supreme court justice confirmed by the Commission must then be confirmed by voters at the next general election. Upon receiving a majority of the votes cast, the justice continues in office. The term of office depends on when the position became vacant. The California Constitution provides for a term of 12 years. However, if part of the term was served before the position became vacant, the justice serves the uncompleted part, either four or eight years. At the end of that term, the justice again must be confirmed by the voters at a general election in order to begin a new term.

California's state appellate justices receive appointments for a specific term and never receive a life-long appointment. Only judges nominated by the President of the United States to Federal Courts are appointed for life and are never voted upon by the citizens of any state.

The professional and personal conduct of appellate and supreme court justices is subject to review by the California Commission on Judicial Performance. All justices must comply with the California Code of Judicial Conduct, which contains standards for the ethical conduct of judges. A justice who violates any of those standards may be removed from office, making the person no longer eligible for election by the voters.

What Appellate Justices Do

Most legal disputes involving state law initially are decided by trial courts or certain administrative agencies. After such a decision, a party may seek appellate review of the ruling if the party believes the trial court or administrative agency made an error of law that harmed the party.

In cases other than death penalty appeals, the party seeks appellate review in the court of appeal. After the court of appeal has made its decision, the party may seek review in the California Supreme Court. Death penalty appeals are decided only by the supreme court.

Thousands of cases are appealed in California every year. They include criminal convictions; civil cases involving personal injury, contract, employment, real estate, probate, dissolution of marriage, child custody and many other issues; and administrative matters, such as worker's compensation. In the vast majority of these cases, the decision of the court of appeal is final. The supreme court grants review of only a few court of appeal decisions when necessary to resolve novel or disputed questions of law.

Proceedings in appellate courts are very different from those in trial courts. In trial courts, a judge or jury hears the testimony of witnesses, and reviews physical evidence, exhibits and documents, then decides which version to believe and reaches a decision. Appellate courts, on the other hand, do not decide an appeal by taking new evidence or reassessing the credibility of the witnesses who testified in the trial court. Rather, they review the written record to determine if the trial court properly interpreted the law and used the correct procedures when considering the case.

To ensure cases are examined from several perspectives, each supreme court case is heard by all seven of the high court's justices, while each court of appeal case is considered by a panel of three justices. Supreme and appellate court justices are assisted in their review by the parties' written and oral arguments. To decide a case in either court, a majority of the justices must agree.

All justices are bound to apply the law whether or not they personally agree with it. Justices may not substitute their own ideas for what the law should be, but are bound by the federal and state constitutions, statutes, and other rules and regulations legislated by those with the authority to do so, including the state legislature and voters by initiative. Judges must enforce all laws without being swayed by public opinion. The Code of Judicial Ethics requires all judges to "be faithful to the law regardless of partisan interests, public clamor or fear of criticism . . . ." The retention election system, adopted by California voters as part of the State Constitution, is designed specifically to foster judges' independence from improper external pressures.

The California Constitution generally requires appellate courts to decide a case in a written opinion setting forth the facts and rules of law upon which the decision is made. By constitutional mandate, the decision must be issued within 90 days after the case has been taken under submission or the justices hearing the case cannot receive their pay.

Important appellate opinions are published in law books and by electronic means which are available to judges, lawyers, the public, and the news media. Such opinions become rules of law which govern future disputes.

In 1996-1997, 18,802 criminal, juvenile, and civil cases were noticed for appeal. During the same period, appellate courts affirmed 95 percent of the criminal and juvenile cases, and 76 percent of the civil cases they heard. Whenever an appellate court reverses, it almost always allows the trial court to rehear the case using the correct law and procedures.

Comparing the Federal and State Court Systems

There are two primary court systems in the United States, the federal system and the 50 state systems. The federal and state court systems are completely separate and distinct from one another. However, some decisions of state appellate and supreme courts are subject to review by the federal courts. The United States Supreme Court has the power to review any case arising in state court which involves federal issues. In a limited number of other cases, a single federal trial judge may reject a decision of a state appellate or supreme court or an initiative approved by state voters.

Although separate from state courts, the federal courts are distributed throughout the 50 states. There are 94 federal district (trial) courts, 13 Circuit Courts of Appeal, and one United States Supreme Court. All federal judges and justices are nominated by the President and confirmed by the United States Senate. Once confirmed, federal judges and justices, unlike California judges and justices, sit for life. Federal judges and justices may be removed only by impeachment. In California, the federal trial courts are centered in four districts. The federal Ninth Circuit Court of Appeals hears appeals from California and several other western states.

Each state has its own court system with trial and appellate courts. California's state court system has 58 county superior (trial) courts, six district courts of appeal centered in Sacramento, Fresno, San Francisco, San Jose, Los Angeles, and San Diego, and the California Supreme Court.

All appellate and supreme court justices are nominated by the Governor, assessed by the Judicial Nominees Evaluation Commission of the California State Bar, and evaluated by the California Commission on Judicial Appointments which is comprised of the Chief Justice, Attorney General, and a Presiding Justice of the Court of Appeal. Unlike trial court judges who face voters with opposing candidates in contested elections, appellate and supreme court justices face voters without opposing candidates in retention elections by which voters merely decide, by yes or no votes, whether to extend their terms of service.

California's state appellate justices receive appointments for a specific term and never receive a life-long appointment. Only judges nominated by the President of the United States to Federal Courts are appointed for life and are never voted upon by the citizens of any state.

The professional and personal conduct of trial, appellate, and supreme court justices is subject to review by the California Commission on Judicial Performance. California trial, appellate, and supreme court justices must comply with the California Code of Judicial Conduct, which contains standards for their ethical conduct. Any California judge or justice who violates any of those standards may be removed from office, making him or her ineligible for election by the voters.

How to Get More Information

As noted above, there are seven supreme court justices, four of whom are on the November 1998 ballot statewide. Similarly, there are 93 court of appeal justices in California, 40 of them on the November 1998 ballot in their respective districts. In the Third Appellate District, there are three justices on the ballot, Connie M. Callahan, Harry Hull, and George Nicholson. The biographical information for each of those three justices and other information is contained in the Secretary of State's Judicial Information Booklet. To obtain or view the booklet or to access additional information on the California Supreme Court and the six districts of the Court of Appeal, in particular, the Third Appellate District, and the justices who serve on them, you may go to the Secretary of State's Internet website at http://Vote98.ss.ca.gov/Judges98/JudicialGuideFrameset.html or call his toll-free telephone hotline at 1(800) 345-VOTE, enter 7, or go to the official Judicial Branch Internet website, "California Courts: The Judicial Branch of California," at http://www.courtinfo.ca.gov/3rdDistrict/.

To provide further assistance to citizens and their friends and families, the Sacramento Bee has published relevant information on its convenient Internet website which may be quickly and easily reached at (http://www.sacbee.com/campaign98/judiciary/index.html). The Stockton Record has done likewise at (htpp://http://www.recordnet.com/daily/election98.html).

And for additional, appropriate information on the Court of Appeal, Third District, State of California, and the justices who serve on it, call (916) 654-0209.