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Weighing two sides of an issue

By John Van de Kamp
President, State Bar of California

Former attorney general John K. Van de Kamp was sworn in as the 80th president of the State Bar
John Van de Kamp 2004-05 President

Loren McMaster is balding and middle-aged, and if his photograph tells us anything, he’s tough and serious. Loren McMaster is a judge on the Sacramento County Superior Court.

Now 60, McMaster was appointed to the court in 1999 by Gov. Gray Davis. A graduate of UC Davis School of Law, he began his practice as a deputy attorney general (1969-72), became chief counsel to the California State Employees Association (1973-80), and was a sole practitioner in the Sacramento area specializing in employment litigation (1980-99).

On the superior court, he spent a year handling domestic violence cases, served as a trial judge with civil and criminal cases and more recently has served as a law and motion judge. Judge Jim Mize, president of the California Judges Association and a Sacramento colleague, describes him as a “discerning and hardworking member” of the bench.

I do not know Judge McMaster but I know about him and what is happening to him.

He is the subject of a possible recall election. Not because of the type of misconduct which might bring a judge before the Commission on Judicial Performance. Not because of some type of dereliction of duty resulting from substance abuse or mental health problems. 

The recall is based on a 22-page opinion Judge McMaster issued on Sept. 8, 2004, in which he granted Defendant Schwarzenegger’s and Defendant Intervenor Equality California’s motion for summary judgment. In so doing, he upheld AB 25 and AB 205, which he stated gave “domestic partners rights that are substantially the same as those enjoyed by persons who are married” and “does not change the definition of marriage in Proposition 22.” Plaintiffs had contended that any law that confers the benefits and detriments exclusively attendant to “marriage” upon a same-sex relationship must be approved by the voters of this state in adherence with California Constitution, Article II §10, subdivision(c).

Days after the decision, the Campaign for California Families sent a request to election officials, signed by 18 persons, to begin the recall process.

In February, election officials approved the gathering of signatures. 44,284 valid signatures will be required by July 20 to get the recall on the ballot. If it qualifies, it will either go on the November general election ballot or be the subject of a special election, which according to Brad Buyse from the Sacramento County Registrar of Voters could cost more than $2.4 million.

In the meantime, an appeal is pending before the 3rd District Court of Appeals, which previously denied a stay request from the Campaign for California Families.

Tony Andrade, who heads the recall committee, has said, “If he is reversed, then I will pull the plug (on the recall) within an hour.”

Do you spot an issue or two here? 

On one side, the judge’s backers argue that “when a group threatens to recall one judge because they disagree with the ruling, they threaten all judges. They threaten the independence of the judiciary.” (Attorney General Bill Lockyer, Nov. 12, 2004.)

From those who support the recall: “The judge has trampled upon traditional family values.” (Tony Andrade.) “He was a donor to Gray Davis. This is a Gray Davis judge. This is a political issue, not a judicial issue. People in California want to protect marriage and those who get in the way will face the people’s wrath.” (Andy Thomasson of Campaign for California Families.)

 What role can the State Bar or I take in conjunction with the recall?

Answer: No role. We are neutralized as a matter of law.

In Keller v. the State Bar of California, 47 Cal. 3d 1152 (1989), the California Supreme Court analyzed whether the State Bar could distribute an information packet regarding judicial independence close in time to a recall election. The educational packet was distributed six weeks before an election in which six members of the Supreme Court faced a confirmation vote. Applying Stanson v. Mott, 17 Cal. 3d 206 (1970), the court held that the use of public funds to distribute the information packet was impermissible despite the fact that the State Bar’s actions were related to “the administration of justice,” one of the bar’s explicit statutory goals (B&P Code §6031).

Subsequent cases have found a Stanson violation even when prohibited activities occurred much further away from an election. See California Common Cause v. Duffy 200 Cal. 3d 730 (1987), where the court held that a sheriff’s use of uniformed deputies and departmental resources to distribute postcards printed by a private campaign organization formed to oust Chief Justice Rose Bird from office was unlawful, even though the retention election was more than two years away.

As another Sacramento Superior Court Judge Morrison England wrote in Brosterhous II et al v. the State Bar of California, Sacramento Superior Court 95AS03901 (Aug. 17, 1999): The “heart of the Keller decision goes back to the compulsory nature of the dues. The only justification for spending mandatory dues on an activity that implicates members’ First Amendment rights is if the activity promotes regulation of the legal profession or improvement of the quality of the legal service available to the people of the state.” The court went on to state, “This court does not agree that lobbying on behalf of the courts or the judiciary is reasonably germane. The judiciary is not part of the integrated bar. Lobbying for an increase in judicial salaries, for example, does not touch on the regulation of the profession.”

Heeding all this advice carefully and conservatively, I will not opine on this issue. As your bar president, I have been mindful of the Stanson, Keller and Brosterhaus rulings.  (Incidentally, Keller and Brosterhaus were colleagues of mine in the attorney general’s office). As a result, I’ve turned down numerous campaign endorsement and fundraising requests during the past year. I’ve had a ready-made excuse to say no. For me, those decisions served as a blessing and a curse. 

Most of you don’t face such restrictions. You can take sides.

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