For the first time in at least 25 years, nine Orange County Superior Court judgeships are up for grabs in the June 7 primary.
In most of the races, prosecutors at the Orange County District Attorney’s Office have the edge because of voter apathy and popular ballot designations.
“I advise people, if you want to run for judge, work at the D.A.’s Office,” said Scott Hart, a political consultant who works on judicial campaigns.
Of the 115 Superior Court judges currently seated in Orange County, more than 100 were appointed over the years by various governors, with the lion’s share — nearly half — coming from Jerry Brown.
How judges ‘pick’ their successors
Retiring judges have a large say on whether their replacement is appointed or elected. If the vacancy on the bench comes during the judge’s term, the governor can make an appointment. But if the vacancy comes at the end of the term, it goes to the voters.
Some judges will keep secret their pending retirements, running the clock out on an appointment. They’ll give their “favored successor” — usually a deputy district attorney — the heads-up that their seat will become available, Hart confirmed. That person will have an early start in campaign fundraising and will benefit from a tradition in the Orange County District Attorney’s Office that prosecutors shouldn’t run against each other.
Sometimes, the would-be successor will carry the retiring judge’s formal endorsement. The prosecutors stake their claim on the open seat by being among the first to pay the $2,250 filing fee for that office.
“That’s the way it’s really handled. A deputy D.A. will have a relationship with a certain judge,” said Hart, who has worked on 18 judicial campaigns. “(Judges say) ‘I’m not going to file for reelection, just sit tight. You can run for my seat.’ The average voter doesn’t know anything about that.”
In this year’s primary election, no one pulled candidacy papers by the Feb. 14 deadline to challenge 36 incumbent judges, who are therefore running unopposed for another six-year term. Under the county’s election process, the judges will be declared the winners and will not appear on the ballot. Judge Frank Ospino was running uncontested, but died Feb. 19. His vacant post has attracted five candidates.
Incumbents tough to beat
No incumbent judge has lost in Orange County in at least a quarter of a century.
It is considered bad form — and a long shot — to run against a sitting judge in the county. For instance, Judge Michael Murray, accused by the California Commission on Judicial Performance of failing as a prosecutor to disclose evidence in a murder trial, has no opposition in his bid for a second term.
In 2016, Judge Scott Steiner ran for reelection two years after he was reprimanded by the judicial commission for having sex in his chambers with former law students. Steiner easily beat his opponent, a local prosecutor who alleged her boss retaliated against her for running against the judge. Steiner is again running for reelection in June with no opposition.
“If you go against this old-time policy, you’re looked at as not playing fair,” said longtime Orange County defense attorney Dave Swanson. “It’s a waste of time and money because the incumbent is generally always elected and I don’t know that anywhere else is any different.”
Voters in the dark
The conventional wisdom among political pundits is that most voters are not educated on all the political races on their ballots, especially lower, nonpartisan offices such as judicial openings. Voters often just go with the incumbents or choose based on candidate ballot titles.
“These are races that nobody has any basis for making a decision,” said Fred Smoller, a political science professor at Chapman University.
Or as Swanson puts it: “People don’t read the news. … Once you get in (a judicial seat), you’ve got to work pretty hard not to get reelected.”
Importance of ballot designations
A 10-year-old poll showed the ballot designation most favored by voters for judicial office in mostly conservative Orange County is “law professor.” Then “judge” or “incumbent.” After that, “district attorney,” according to Hart.
The prosecutor designation “shows that person is strong in putting criminals away and protecting the rights of the voters,” Hart said. “I don’t think it’s stacking the deck. That ballot title (district attorney) is a strong ballot title.”
Some critics say the system unfairly favors prosecutors ascending to the bench.
“It is brutal that judges pass these positions on to their friends in the D.A.’ s Office like they are all members of the same Orange County royal family,” said victims advocate Paul Wilson, whose wife, Christy, was among eight people shot to death by Scott Dekraai in October 2011 at a Seal Beach beauty salon.
Wilson also took aim at former senior assistant district attorney and judicial candidate Ebrahim Baytieh, who is popular among Orange County judges. But Baytieh was recently fired after it was discovered that evidence was withheld in a 2010 murder case he prosecuted. The discovery originated as part of a series of hearings into jailhouse informants that began in 2014.
Those hearings concluded that prosecutors and sheriff’s deputies improperly used so-called snitches to interrogate inmates, violating their right to have a lawyer present. Prosecutors also withheld the informants’ backgrounds from defense attorneys in violation of the federal disclosure law.
Baytieh’s defenders allege he was actually fired for blowing the whistle on racially charged statements made by his ex-boss, District Attorney Todd Spitzer, during an internal meeting on a Black homicide defendant.
Said Wilson: “(The fact) that Ebrahim Baytieh, the worst offender from the snitch scandal, gets to slide in, shows that too many judges value friendship over justice.”
Baytieh has raised at least $311,000 in his bid to replace outgoing Judge Greg Lewis, who has given Baytieh his endorsement. Squaring up against Baytieh is last-minute candidate Los Angeles County Deputy District Attorney Craig Kleffman, who was accused of ordering the secret taping of a private discussion between a jail inmate and his attorney at a Los Angeles courthouse. Kleffman says he never ordered the taping to be done and the court found no wrongdoing on his part.
Also running is private attorney Frederick Fascenelli, who has lost other judicial campaigns. Fascenelli said he doesn’t believe the unofficial system favoring judges and prosecutors is unfair.
“It”s not perfect, of course not. But you’re not going to get me to say it’s unfair,” he said. “It’s a fair system.”
‘Old buddy system’
Defense attorney Swanson, however, said prosecutors are getting a free ride.
“It’s the old buddy system. … It’s like a professional courtesy and it’s sort of been that way for years,” Swanson said. “The public has virtually no contact with the judges, so they are in the dark.”
One potential side effect of the snitch scandal was that few county prosecutors were appointed to the Orange County bench during the years that the controversy was coursing through the courthouse. Most of the judicial appointees went to public defenders, private attorneys, commissioners, federal prosecutors and appellate court clerks.
The upcoming election is viewed by some in the Orange County legal community as a chance for county prosecutors to take over a bloc of judgeships.
Primary match-ups
Running for the open seats are:
- Orange County Chief Assistant District Attorney Shawn Nelson, who is facing opposition from defense lawyer Marc Gibbons for the seat being vacated by Judge John L. Flynn III. Nelson is using consultant Hart, who said at the time of the interview that Nelson had not sought Flynn’s endorsement.
- Assistant District Attorney Steve McGreevy is vying with civil attorneys Brett Wiseman and Thomas E. Martin for the seat being vacated by Judge Gregg Prickett. Prickett, a former prosecutor, is endorsing McGreevy.
- Assistant District Attorney Chris Duff faces Superior Court Commissioner Joe Dane for the seat being vacated by Judge James DiCesare.
- Senior Deputy District Attorney Eric Scarbrough faces divorce attorney Jessica Cha for the seat being vacated by Judge Robert Moss.
- Deputy District Attorney and former Santa Ana City Council member Claudia Alvarez faces private attorneys Kimberly LaSalle and Daniel Espinosa for the seat being vacated by Judge Jacki Brown. Alvarez is endorsed by Brown, a former appeals court researcher.
- Senior Deputy District Attorney Erin Rowe faces attorney Roger Brown for the seat being vacated by Judge Cheryl Leininger.
- Baytieh, the former senior assistant district attorney, faces Fascenelli and Kleffman for the seat being vacated by Judge Lewis. Baytieh is endorsed by Lewis, a former private attorney. Baytieh apparently will be listed on the ballot as a deputy district attorney, although he no longer works for the office. Kleffman challenged the designation, but was denied by the registrar of voters.
- Senior Deputy District Attorney Israel Claustro faces court Commissioner Kevin Brian Jones for the seat being vacated by Judge Nancy Zeltzer.
- Orange County Superior Court Commissioner Michele Bell faces Riverside County Deputy District Attorney Alma Hernandez, Deputy State Attorney General Peggy Huang, Los Angeles County Deputy District Attorney Andrea Mader and attorney Benjamin Stauffer for the seat left open by Ospino’s death.
In races where no one earns a majority vote in the primary, the two top vote-getters will square off in the November runoff election.
Source: Orange County Register
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