the president's report
Judging Judges
by David Wasserman
This message is being sent with utmost urgency. Unlike the typical and expected maneuverings by the San Francisco Board of Supervisors to front irresponsible and harmful legislation, this November we face a far more serious threat to our industry: a judicial election.
Many of you have probably paid little, if any, attention to the challenge by Supervisor Gerardo Sandoval to the Superior Court judicial seat now held by Judge Thomas J. Mellon. In California, the governor usually appoints state judges and then they stand for re-election; if unchallenged, they do not campaign, but rather continue with their daily work of hearing cases and rendering decisions. If challenged, which is rare in San Francisco County, the judge is forced into the political foray of fundraising, campaigning and vote seeking. Such is the fate of Judge Mellon, who has faithfully served our community for the past 14 years as a judge of the Superior Court.
By way of background, consider that the American system of governance is founded on the principle of three separate branches of government that equally coexist, serving to check each other’s activities so that one does not control the entire process. Those who serve in the executive branch are elected by the people and most executives (like presidents, governors and mayors) are subject to term limits. They act as the CEOs of their jurisdictions, but do not pass laws. The legislators, or lawmakers, are also elected and oftentimes face term limits. Unlike executives, legislators (like senators and supervisors) must usually build a consensus among themselves in order to pass laws. Both legislators and executives are constantly campaigning in order to please their constituencies and gain re-election or a higher office.
The third branch, the judiciary, acts as the ultimate check on what the executives and legislators do. For instance, when the Board of Supervisors passes an unconstitutional rent law, the courts step in and stop the city from enforcing it. When the mayor fails to protect guaranteed property rights, the courts can make him treat landlords in a just manner. Judges are not supposed to care how voters feel about their decisions. Rather, their duty is to uphold the law of the land.
Federal judges, and state judges in 11 states, are appointed for life and can only be removed by impeachment for serious crimes or incompetency. (There is growing national concern over the fact that 39 states elect judges in some manner, and that these judicial elections are becoming increasingly political, with negative campaigning.) In California, we subject our judges to elections, but, as stated above, sitting judges in our community are rarely challenged. Indeed, San Franciscans have respected the idea of keeping judges out of politics. We understand that challenging a sitting judge only leads to an atmosphere where decisions are not based on the law, but instead are made out of the fear that activist interest groups may rise up during the next election cycle and elect someone they perceive to be more favorable to their beliefs.
Not surprisingly, Supervisor Sandoval is capitalizing on factors entirely irrelevant to what makes a judge competent. He admittedly challenged Judge Mellon because Judge Mellon is a Republican who was appointed by a Republican governor. He wrongly accuses Judge Mellon of being pro-landlord, when in reality this judge, like the rest of the bench, makes decisions based on the law and the weight of the evidence. While some judges are Democrats and others are Republicans, and while some may be liberal minded and others conservative, a competent judge divorces his or her political views and personal biases from the decision-making process. This is exactly why the framers of the Constitution were brilliant with their design: politicians could write and execute laws in accordance with their own agendas, but each law and act would be subject to scrutiny from an independent branch of government that cared not for the political mood of the time, but placed concern solely with whether the government’s action, or inaction, was within the confines of our federal and state constitutions.
People like Sandoval seek by their selfish actions to undermine this balance of power. By basing his campaign on promised judicial activism, Sandoval makes no secret of his intention to make the judiciary another political branch of government. If he succeeds, and more of our county judges are replaced by “activists,” the last remnant of fairness will be decimated. No longer will owners be afforded the assurance that the laws of the State of California will be applied in a fair and officious manner. When outlandish legislation is passed, our ability to seek redress within the courts will be diminished. When the city decides to further erode what few rights we still have, the courts will not be there to safeguard our constitutional guarantees.
For the record, Judge Mellon is not a special friend to the rental housing industry. Ask any attorney at 400 McAllister St., and he or she will tell you that this judge is impartial, fair and stern. He calls a case based upon his interpretation of the facts and the law, but he is not colored by biases and prejudice. He does not have an agenda, and his aspiration is seemingly to complete his judicial career in a dignified manner. His decisions are rarely reversed on appeal, and he has been known to rule in favor, and against, landlords. Judge Mellon will not opine on the need for rent control or on the state of property rights. Unlike the supervisors, he does not take a stance on whether or not we need more enhancement of the rent law. He is, in essence, a proper judge, and for doing his job in accordance with the spirit of our three-branch system, he is now being penalized.
Even if Judge Mellon were a zealous tenant activist, and were being challenged as a sitting judge by a conservative Republican (obviously, such a race would not be in San Francisco), I would still be making this plea. For the system to work, judges cannot become politicians. They cannot worry about the next campaign when they make a decision. If their holding is wrong, the aggrieved litigant can file for appellate review. Judges who fail to perform their duties can be removed from office, but absent such circumstances, a competent sitting judge should be left to do the job that he or she was given by virtue of the constitution.
About 12 years ago, another sitting judge was challenged by a senior litigator at the Tenderloin Housing Clinic. The campaign issue was not the competency of the sitting judge. Predictably, the challenger played up the irrelevant fact that the judge was a Republican, appointed by a Republican governor, and that San Francisco should rid itself of any Republican judge. Utter nonsense! Thankfully, the challenger lost, but we may not be so lucky this time.
SFAA members should therefore vote in favor of keeping Judge Mellon on the bench, not because he is a friend of the industry, but simply because he is a qualified, hard-working member of the judiciary who has served his community with honesty and integrity. The membership should also contribute funds to his campaign. This past spring, industry attorney Clifford Fried hosted a fundraiser at his office. The response was good, but we can do better. Judge Mellon had hoped to capture more than 50% of the vote during the June special election, thereby vitiating the need for a run-off. Neither candidate attained 50% and a third challenger was eliminated, but Sandoval actually received slightly more votes. It is well known that Sandoval has many powerful and wealthy friends eagerly fueling his campaign. Therefore, the urgency of this situation cannot be overstated.
In sum, if Sandoval wins in November, look for more activist challengers seeking to unseat our judges. The end result will be that the courts will lose their independence. In our city, this means that there will no longer be any meaningful protection against the barrage of bad laws and policies directed at housing providers. Consequently, we will continue to pay most of the taxes and receive the lion’s share of burdens, but the difference between elected judges versus an independent judiciary will translate into a grossly more uneven playing field. New taxes, laws that violate the Bill of Rights and insane jury verdicts will be affirmed, rather than rightly analyzed, by the men and women in black robes. Don’t let that nightmare become a reality. Please act now to make sure that Judge Mellon keeps his seat, and send a message to the political opportunists that a judgeship is not tantamount to a seat at 100 Van Ness Ave.
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. David Wasserman is the president of SFAA. He can be reached at Wasserman-Stern Law Offices, 415-567-9600. Copyright © 2008 by Black Point Press. All rights reserved.