Complaint filed over judge who extended recall signature time

After the California Supreme Court declined to hear a challenge to the recall of Gov. Gavin Newsom, a Sacramento political gadfly who attempted to intervene in the case filed a related complaint Thursday with the Commission on Judicial Performance.

Howard Herships stated Sacramento County Superior Court Judge James P. Arguelles failed to disclose a previous partnership with the recall campaign's attorney. However, the relevant legal code suggests he may not have needed to.

The convoluted legal saga began last fall. Recall organizer Orrin Heatlie sued then Secretary of State Alex Padilla to extend the time the campaign had to gather signatures to qualify the recall for the ballot, citing the difficulties caused by the COVID-19 pandemic. Bradley A. Benbrook represented Heatlie, and an allied group, the California Patriot Coalition. Heatlie v. Padilla, 34-2020-80003499-CU-WM-GDS (Sac. Super. Ct., filed Oct. 2, 2020).

In November, Arguelles waived the 160-day state law deadline for signature gathering, granting the recall proponents a 120-day extension. The recall qualified last month and will probably occur later this year.

Then two politically active Sacramento area residents, Herships and Karen Fletcher, appealed the ruling. Neither is a member of the California State Bar. The 3rd District Court of Appeal rejected their request on May 11. The California Supreme Court turned them down this week. Fletcher v. Superior Court, S268889 (Cal. Sup. Ct., filed May 21, 2021).

In his complaint to the commission, Herships stated Arguelles failed to disqualify himself or disclose that he and Benbrook were partners together at Stevens & O'Connell LLP in Sacramento, and that they wrote at least one legal publication together. Arguelles was a partner at the firm from 2005 until then-Gov. Arnold Schwarzenegger appointed him to the bench in 2010.

Benbrook's biography with Benbrook Law Group PC in Sacramento also lists him as a former partner at the firm, though it does not list dates. However, a review of case files shows Benbrook was with the firm in 2007.

"The fix was in. He wanted to get before that judge," Herships told The Daily Journal. "Under the code, he had no jurisdiction. He wasn't a qualified judge because he was a partner with him for a number of years."

Herships pointed to the California Code of Civil Procedure Section 170.1, which states "(a) A judge shall be disqualified if any one or more of the following are true: ...(ii) A lawyer in the proceeding was associated in the private practice of law with the judge." These rules are repeated in the California Code of Judicial Ethics, Canon 3E (5)(a).

"Contrary to CCP 170.1(a) (ii), Judge Arguelles did not inform respondents' attorneys nor disqualified himself under this statute, but of course under the Administrative Procedures Act he was also precluded from jurisdiction," Herships wrote in the complaint.

However, the code section on private practice follows a section that appears to state the rule is time-limited. The entire relevant section would read: "A judge shall be deemed to have served as a lawyer in the proceeding if within the past two years ... A lawyer in the proceeding was associated in the private practice of law with the judge."

Arguelles left the firm 11 years ago.

But Herships also pointed to another section of the code calling for recusal if "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."

Herships said in the complaint the case was originally assigned to a different judge. Herships said Arguelles ruled that the case was related to two others having to do with signature gathering for voter initiatives, Macarro v. Padilla, 34-2020-80003404-CU-WM-GDS (Sac. Super. Ct., filed June 9, 2020) and Sangiacomo v. Padilla, 34-2020-80003413-CU-WM-GDS (Sac. Super. Ct., filed June 23, 2020).

James A. Murphy has defended many judges in commission complaints. The partner with Murphy Pearson Bradley & Feeney in San Francisco said in an email that parties can sometimes win a disqualification years after a judge and an attorney have worked together if there is "some other additional relationship that mandates" disqualification.

Sacramento County Superior Court Deputy Director Kim Pederson and commission Director and Chief Counsel Gregory Dresser both said they could not comment. Benbrook did not respond to an email.