Appellate Court Justices and Retention Elections

By Douglas E. Swager

Every four years coinciding with our gubernatorial election, the names of state appellate justices appear on the ballot in what is called a retention election. There are no opposing candidates since the office is nonpartisan. This paper was adapted from informational materials prepared by the Public Education Subcommittee, Appellate Courts Committee of the California Judges Association.

The 19 justices of the First Appellate District serve a population of over five million citizens in twelve Northern California counties, Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma. On average, each year 2, 849 notices of appeal and 1,210 original proceedings are filed and 1,950 written opinions are issued.

How Appellate Justices are Selected

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

Before a person can become an appellate justice, the Governor must submit the person's name to the California State Bar's Commission on Judicial Nominees Evaluation. This Commission 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 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 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 court justice.

An appellate court justice confirmed by the Commission must then be confirmed by voters at the next general election. 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. Unlike trial court judges who face voters with opposing candidates in contested elections, appellate 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. Appellate court justices generally do not actively campaign for retention since the office is nonpartisan. 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. 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. This selection and retention process has produced an appellate judiciary in California that is widely respected as diverse, well qualified, and collegial.

California's state appellate justices receive appointments for a specific term and never receive a lifelong 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 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 both on and off the bench. A justice who violates any of these 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. 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 a judgment of the trial court, 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.

How to Get More Information

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. Since Appellate court justices, except for justices of the Supreme Court, only appear on the ballots in the districts in which they serve, 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 includes 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://www.ca.gov. or call 1 (800) 345-VOTE.

Adding to the data supplied by the Secretary of State, the Judicial Branch's website (http://www.courtinfo.ca.gov/) also contains biographical information about all appellate court justices, including those on the 1998 general election ballot. Additional information about the First District Court of Appeal including rules, procedures, forms and frequently asked questions can be found at http://www.courtinfo.ca.gov/courts/courtsofappeal/1stDistrict/ .