Plan to end retention elections for appellate justices advances

A proposed constitutional amendment to allow California appellate justices to skip retention elections passed its first committee test on Wednesday. But a former law school dean who has spoken out against the measure said it could apply to superior court judges as well.

Assembly Elections Committee Chair Gail Pellerin, D-Santa Cruz, presented Assembly Constitutional Amendment 8 to her own committee. It would change the nine-decade-old system that requires justices to stand for retention every 12 years, even when they face no opposition. If signed and then approved by voters, the amendment would state a justice would "be deemed elected" unless voters file a petition demanding they go before voters.

She cited statistics familiar to many who follow judicial elections showing that justices are almost never unseated. Many voters skip over these races, she added.

"Since that procedure was created in 1934, justices have successfully been retained in more than 99.5% of retention elections," Pellerin said. "The three Supreme Court justices who were defeated in 1986 are the only time in the state's history that a justice was not successfully retained."

The committee's vice chair, Assemblymember Alexandra Macedo, R-Tulare, asked why ACA 8 did not specify the required number of signatures.

"We don't want to put it in the Constitution," Pellerin replied. "My plan is to absolutely see how people are responding to this idea and if this is something that is supported, then I'll be working on legislation next year to arrive at that number."

ACA passed 4-2. Macedo and Assemblymember David Tangipa, R-Clovis, voted no.

John Trasviña is one of the few voices actively opposing ACA 8. He served in the Bill Clinton and Barack Obama presidential administrations. He is also a former president and general counsel of the Mexican American Legal Defense and Educational Fund and dean at the University of San Francisco School of Law.

Trasviña said the Legislature put an amendment before voters over 90 years ago to address the perception that "people had divorced themselves from having a voice in the judiciary." That concern has renewed urgency today, he added.

"That's why we set up the retention process and the right to vote on our democracy," he said. "Our judges are being attacked by President Trump all over the country. We need to have more visibility and more say on judges rather than less."

Trasviña and the Election Integrity Project have sent letters and published editorials opposing the measure. He said there are plenty of other options that could save more money than eliminating judicial retention elections.

He also pointed to language near the end of ACA 8 that could allow counties to opt out of elections for sitting superior court judges. The law would reference existing language stating, "Electors of a county, by majority of those voting and in a manner the Legislature shall provide, may make this system of selection applicable to judges of superior courts."

Some judges and law professors have called for an end to all judicial elections in recent years. Voters defeated San Diego Superior Court Judge Gary Kreep in 2018. Earlier that year, Santa Clara Superior Court Judge Aaron Persky became the first sitting California judge recalled in over 80 years.

His supporters noted the Commission on Judicial Performance cleared Persky of any wrongdoing. The next year saw four unsuccessful recall campaigns against superior court judges in San Francisco. Berkeley Law School Dean Erwin Chemerinsky criticized the spate of recalls at the time, citing the "inherent tension" between judicial independence and election pressures.

But 2024 saw a renewed voter interest in judicial elections in California, with several sitting judges facing challengers. Humboldt voters turned out Judge Gregory J. Kreis in the March primary. Like Kreep years earlier, Kreis was facing misconduct allegations before the commission.

Trasviña said this "growing interest" in judicial elections suggests voters should continue to have the option to vote on sitting judges, even if they do not always use it.

"If there are more elections where the people say, 'We want a different judge,' then we need to respond to whatever it is that they're worried about and not say 'Oh, you no longer have the right to vote,'" he said.

malcolm_maclachlan@dailyjournal.com