Four SF judges face challenge from deputy public defenders

Four deputy public defenders challenging San Francisco County judges claim their opponents have been complicit in a criminal justice system that has seen people of color disproportionately charged and incarcerated.

The incumbents counter that the challengers are political opportunists threatening the judiciary’s independence.

“It’s not what they’re doing wrong,” said Deputy Public Defender Niki Solis, who is challenging Superior Court Judge Jeffrey Ross. “It’s about what they’re not doing.”

“When it comes to values for judges, I think we’re all on the same boat,” said Superior Court Judge Curtis Karnow, who is being challenged by Deputy Public Defender Maria Evangelista. “We all want to make sure we have a judge who isn’t biased, will hear everyone out, will work really hard to figure out what the right answer is and that you’re given a fair shot.”

In the 24 contested judicial races in Northern California, a superior court judge is being challenged in 17. The San Francisco campaign stands out because the challengers launched it by attacking the incumbents for being appointed by Republican governors Arnold Schwarzenegger and Pete Wilson.

In addition to Solis and Evangelista, who are challenging Ross and Karnow, the challengers also include Kwixuan Maloof, who is running against Judge Cynthia Ming-Mei Lee and Phoenix Streets, who is opposing Judge Andrew Cheng. All four challengers are veteran San Francisco deputy public defenders.

Elizabeth Zareh of Zareh & Associates is also running against Maloof and Lee but is not from the public defender’s office.

Karnow said the opposition campaign’s rhetoric is a partisan attack on the judges, all of whom are registered Democrats, and is uncalled for in a judicial election.

“They invoke Trump,” said Karnow, who oversees the complex litigation department. “They insinuate that we don’t reflect San Francisco values because we’re Republicans. They say this as a way to vote for them and as a way to express opposition to Trump in Washington.”

While Cheng posited that the incumbents all embody what he believes are San Francisco values of equality, diversity and compassion, he also said judges should not have to consider the values of the community because it affects the judiciary’s independence.

If judges were obligated to reflect the values of the people they serve, courts would never have mandated desegregation, he added.

“If judges were to be directly accountable to the electorate, in that case, it will affect the judiciary because judges will have to account for electoral will and will be less likely to make those courageous decisions that deviate from the majority will,” Cheng said.

Lee, who oversees the asbestos case management and California Environmental Quality Act departments, agreed and said the consideration of the political affiliation of the governor that appointed judges is “unfounded.” She added the litmus test for judges should be whether they are following the law and treating people with dignity and compassion.

While declining to comment on whether a judge’s seat is political or not, Solis said voters have a right to choose between a “transparent political process versus a backroom political process” when determining who should represent them on the bench.

The legal community has moved to support the incumbent judges from what it perceives as an unprecedented and potentially dangerous effort to politicize the bench, according to prominent attorney John Keker.

“These public defenders have a right to run against the incumbents, but just because you have a right, doesn’t mean it’s a defensible or a good thing,” said Keker, a partner with Keker, Van Nest & Peters LLP.

Assemblyman David Chiu, D-San Francisco, and state Sen. Scott Wiener, D-San Francisco, both expressed concerns about the “politicization of the bench” in statements defending the incumbents. “It concerns me that one public defender’s office is trying to take out four judges in one fell swoop,” said Weiner, who worked in the city attorney’s office with Cheng prior to his appointment in 2009.

The challengers say the legal community rallying in support of the sitting judges without ever having met or consulting with them speaks volumes to the group-think within their profession.

Evangelista said the state Constitution provides for the balancing of judicial independence and accountability through the very process the judges are attacking. The system allows the community to hold its judges accountable through elections, she added.

“The fact that there’s been word that we are attacking the judiciary and are attacking judicial independence when this is democracy at its best, I have a fundamental difference with them about that,” Maloof said.

When asked what has led to the disproportionate sentencing outcomes for people of color in San Francisco, the public defenders each mentioned the bench’s refusal to recognize “implicit bias.”

Implicit bias most often influences a judge’s discretion when determining sentencing, release or whether to funnel the case to one of San Francisco’s many collaborative courts, according to Evangelista. She added that the widespread unawareness of how this bias affects a judge’s decision-making is partially what led to the abundance of people of color in the criminal justice system.

“Judicial discretion is where judges have the power to reflect the community’s values,” Streets said. “It has to be about what is in the best interest of the community.”

Each of the four incumbents wrote that they recognized the significance of being aware of their own implicit biases in their short answer questionnaire to the San Francisco Democratic County Central Committee, which endorsed all of the sitting judges.

“When I’m making a decision, I ask myself if my decision would be different if the person is Asian,” Lee said. “Having experienced discrimination through my life, that’s something I’m keenly aware of.”

Both sides have also said that the opposition is claiming credit for contributions to criminal justice changes for which they are not responsible.

San Francisco Superior Court has seen a significant increase in the number of defendants released prior to trial in the wake of the 1st District Court of Appeal’s decision concerning the legality of money bail.

In February and March 2017, 1,051 defendants were out on conditional release, according to San Francisco Sheriff Vicki Hennessy. That figure jumped to 1,616, nearly a 50 percent increase, in February and March this year, while the number of total bookings remained relatively flat from the same period last year.

“They’re taking credit for something they resisted,” Streets said.

But the incumbents contended that sitting judges deserve credit for helping to establish San Francisco’s many collaborative courts.