The June 3, 2014 judicial election that tags along with the political party primaries is ordinarily a sleeper, but this year an incumbent Judge—Lisa Schall—is facing a stiff challenge from a startup outsider: Assistant United States Attorney Carla Keehn.
On Friday February 21, 2014, the San Diego Union Tribune broke a story pointing to potential manipulation of Keehn’s campaign by San Diego’s entire Superior Court bench. The UT reported that one of the groups that had endorsed Keehn, Tom Homann Lawyer’s Association (THLA), had been pressured by Judge David Rubin and Judge Paula Rosenstein to withdraw THLA’s endorsement of Keehn.
Nicholas Fox, President of THLA, wrote to Keehn on Feburay 10 expressing what he called “concerns” he was receiving from Judges Rubin and Rosenstein as well as “their colleagues at the Superior Court” about Keehn’s candidacy. Weightier Matter has obtained a copy of the email. In it Fox writes:
As you know, both Judge Rubin and Judge Rosenstein have expressed a concern coming from their colleagues on the Superior Court regarding your running against a sitting judge. As strong supporters of THLA, Judges Rubin and Rosenstein wanted to alert THLA of these concerns.
As you know, many judges on the Superior Court support THLA and its mission. They attend our events, including our annual dinner. In fact, I think the THLA annual dinner has the best showing from the Superior Court as compared to all other diversity bar associations. Our good relationship with the bench is something we have worked hard to establish, and something we cherish and need to protect.
Many of THLA’s lawyer members practice in the San Diego county courts, and Fox claims those attorneys also expressed concern about judges becoming alienated by THLA’s endorsement of a challenger to one of their judicial colleagues. Fox’s email goes on to describe “tension” between THLA and the San Diego bench:
The underlying tension is that these supportive judges are concerned by a THLA Board member taking on one of their colleagues in an election. Although all judges are individuals and subject to electoral challenge, they also collectively form part of the greater “Superior Court.” There is a great deal of collegiality among judges, and having a Board member of an organization that the judges strongly support directly challenge one of their own colleagues has raised concern.
Fox explains that by February 10 “tension” between the Court and THLA had spread to other THLA board members and “the legal community” in general. Fox conveys fears that by sticking by their endorsement of Keehn, THLA’s members would “alienate allies” on the bench, and that THLA’s members who appeared before Superior Court judges would suffer. Fox writes:
There is a generally expressed a concern that a Board member openly challenging a sitting judge will reflect poorly on the organization and be seen as an affront to the Superior Court and its sitting judges generally. The Superior Court’s perception of THLA may be negatively affected (as is perhaps evidenced by the concerns received thus far)
Fox didn’t write Keehn merely to pass along concerns from the bench. Keehn had been a member of THLA’s Board of Directors for years prior to her announced candidacy, and had sought, and obtained, the group’s support when she announced in October. But in the February email Fox notified her that THLA no longer wanted Keehn on its Board:
Because of the concerns coming from various sectors in the legal community, we ask that you consider resigning from the Board during the pendency of the election. This will protect THLA by not having a current Board member directly challenge a sitting judge, and hopefully will alleviate concerns from the Board and bench that THLA’s reputation may be damaged as part of the electoral process.
Fox also notified Keehn that THLA’s prior endorsement of her candidacy was no longer valid—as a matter of “policy”:
In addition, because of these changed circumstances, I need to emphasize that the endorsement THLA provided to you back in October 2013 was for an election to a vacant seat on the bench. Now that you are running against a sitting judge and not for a vacant seat, THLA’s prior endorsement is no longer in effect under Policy 2 of our Standing Policies and Procedures.
Fox, a lawyer at San Diego’s office of Foley & Lardner, explained that he was not withdrawing the endorsement, but that because Keehn had “changed” from running for an open seat to running against an incumbent, THLA’s endorsement was no longer good.
Board minutes from THLA tell a different story. When the Board voted for Keehn at the October meeting, the minutes note that at the time “it is unclear how many seats will be vacant.” Clearly THLA understood that the race could change after the Board’s vote, but the endorsement carried the majority of the Board’s members anyway.
Fox expressed no reservations about Keehn’s merit against Schall, offering:
From my personal perspective, I think it is great you are running for judge, and I of course want you to be successful (in the election or otherwise). However, my personal opinions are irrelevant to the issues above. As members of the Board, we are stewards of the organization. We have a duty to the organization not only to promote what is in the best interests of THLA, but also to avoid actions that may harm THLA or its reputation.
In response to Weightier Matter’s email requesting clarification, Fox advised yesterday that Keehn has not resigned, but that if she chooses to do so “she would be welcome to return to the Board after the election if she is willing and able to do so. The proposal that she resign was only for the pendency of her campaign.”
Fox also confirmed to Weightier Matter that his statements in the email regarding the “pressure” coming from the entire San Diego “Superior Court bench” was a “mischaracterization.” Fox told Weightier Matter “there was a misunderstanding on my part. Everything is cleared up, as Judge Rubin noted in his comments in the U-T article.” The UT quoted Rubin as stating that his comments about “concerns” from the bench were “not in any way advocating on behalf of my colleagues.” He was acting alone, he offers, in disrupting Keehn’s endorsements.
Keehn also reports having received “other calls from the bench” “urging her to reconsider.”
Judges Went on Attack Once Schall Was Challenged
When Keehn announced her candidacy in October, the seat she was running for was vacant. Her professional colleagues enthusiastically supported her. She sought the official endorsement of THLA, which did so. However, when the open seat she was running for became unavailable, Keehn chose to capitalize on the momentum she had built since October, and switched her candidacy to challenge Schall, who’s term ends this year.
Schall’s colleagues on the bench and throughout the county and state mobilized, mounting a collective defense as well as going on the offensive. Schall’s election website went live early last week promoting that “all 127 judges of the San Diego Superior Court” have endorsed her, as have approximately five hundred members of the statewide Alliance of California Judges, District Attorney Bonnie Dumanis, City Attorney Jan Goldsmith, and Public Defender Harry Coker.
Good Reasons To Challenge a Problem Judge?
Keehn is not alone if she senses that Schall may not be the best choice for further public service. In her three terms Schall has been the subject of three public admonishments from the California Commission on Judicial Performance, and is at the center of an ongoing racketeering lawsuit brought by California Coalition for Families and Children based on Schall’s performance on the Family Court bench, irritating parents to the point of bringing a racketeering lawsuit. California Coalition also reports additional complaints that have not been published by the Commission, but are made part of the Coalition’s First Amended Complaint. California Coalition’s Complaint shows similar retaliatory behavior by Schall and Family Court Judge Joel Wohlfeil in 2010:
42 U.S.C. § 1983 and Cal. Const. art. I, § 26
Against Defendants WOHLFEIL, SCHALL
251. This is a Claim by STUART against Defendants Wohlfeil and Schall for deprivation of rights under color of law pursuant to 42 U.S.C. § 1983 and Cal. Const. art. I, § 26 by efforts to retaliate against Plaintiffs for DDIJO COMPLAINT I and the DUE ADMINISTRATION OF JUSTICE in the STUART ASSAULT.
252. All prior paragraphs are re-alleged and incorporated as if set forth in full.
253. On information and belief, Defendants SCHALL, WOHLFEIL were or became aware of the DDIJO COMPLAINTS I and II between the time period in which the complaints were made and the STUART ASSAULT.
254. On information and belief, upon learning of DDIJO COMPLAINT I, WOHLFEIL and SCHALL determined to retaliate against STUART for making of the Complaint and publishing of the same to others.
255. On information and belief, WOHLFEIL and SCHALL learned of the SDCBA ENGAGEMENT and STUART’S planned attendance before the SEMINAR.
256. Upon learning of the SDCBA ENGAGEMENT, each judicial officer, including WOHLFEIL and SCHALL, and DOYNE recognized the ENGAGMENT to be an opportunity to retaliate against PLAINITFFS for their involvement in PUBLIC BENEFIT ACTIVITIES, DDIJO and DOYNE COMPLAINTS, and the DUE ADMINISTRATION OF JUSTICE.
257. On information and belief WOHLFEIL and SCHALL:
a. Participated the PLANNING AND DELIVERY of the SDCBA SEMINAR;
b. Alerted or communicated with one or more other person or entity to share knowledge of one or more of Plaintiffs’ PUBLIC BENEFIT ACTIVITIES, and the ENGAGEMENT, STUART’S planned attendance at the SDCBA SEMINAR;
c. Coordinated with activities of others, including each other STUART ASSAULT COORDINATORS, relating to the STUART ASSAULT; and
d. Communicated or coordinated with each STUART ASSAULT COORDINATOR, SDCBA, SDCBA DOE 1 and possibly other SDCBA agents or employees, including CHUBB (described more fully below), ODO Defendants, and SDSD DOES 1-15 about the STUART ASSAULT both before and after the STUART ASSAULT.
258. Through such activities, WOHLFEIL and SCHALL influenced their co-defendants to this Count to assist in retaliation, intimidation, harassment, chilling, and undue influence of PLAINITFFS in the DDIJO COMPLAINTS, DUE ADMINISTRATION OF JUSTICE, and PUBLIC BENEFIT ACTIVITIES.
259. In performing the actions in the STUART ASSAULT and this Count 1, WOHLFEIL and SCHALL CULPABLY and UNREASONABLY breached one or more PROFESSIONAL DUTIES, causing reasonably foreseeable constitutional deprivation to STUART in violation of STUART’S rights to SUBSTANTIVE DUE PROCESS.
260. In performing the actions described in this Count 1 with each other Defendants as alleged, WOHLFEIL and SCHALL, subjected STUART or caused him to be subjected to deprivation of rights, privileges, and immunities relating to SEARCH AND SEIZURE; SUBSTANTIVE DUE PROCESS; EXPRESSION, PRIVACY, and ASSOCIATION; ACCESS TO JUSTICE; EXCESSIVE FORCE; CRUEL AND/OR UNUSUSAL PUNISHMENT.
261. As an actual and foreseeable result, PLAINITFFS have been deprived, damaged, and injured as elsewhere alleged.
Keehn apparently tuned in to the public discord surrounding Schall, and decided to give voters a choice. “I’m a qualified candidate. And I think I would make a good judge,” Keehn said. “The California constitution mandates that every six years Superior Court judges come up for re-election. This makes them accountable to the citizens of their counties. It gives voters a chance to choose who should hold the office based on each candidate’s qualifications and their record.”
Carpe Dicta researched Keehn’s qualifications and reports her to be an extraordinarily talented lawyer with a diverse personal and professional background. Her academic accomplishment include degrees from Princeton University and University of California, Hastings College of the law, exemplifying the highest academic achievement, discipline, and intelligence. As a federal prosecutor she participated in a remarkable variety of criminal prosecutions and in developing pilot drug offender diversion programs for alternative sentencing, saving taxpayers the expense of high security lockups for low-risk drug offenders. Her website bio indicates she served as a lead prosecutor in the military Judge Advocate General (JAG) Corp, has competed in over twenty marathons, and is a mother of three. She has served both as a prosecutor and public defender in over thirty years of public service.
Keehn’s entry in the June contest brings not only controversy to an ordinarily pedestrian contest, but a very rare choice to business as usual on the bench. County judges are ordinarily appointed by the Governor from San Diego County’s District Attorney’s Office. Most are groomed for the position by more senior local prosecutors and judges, and once elected they rarely face a serious challenger. The strong resistance to Keehn’s candidacy from the sitting bench reveals the level of behind-the-scenes pressure that can prevent qualified challengers from seeking office. The result is a high percentage of former District Attorney criminal prosecutors with little fear of accountability managing not only criminal courtrooms, but civil, family, probate, juvenile, and appeal calendars.
Federal prosecutors are not part of that herd, in part because federal agencies are at times adverse to state agencies. Federal law enforcement, courts, and politicians possess substantial oversight responsibility for state and local officials to prevent campaign corruption, prosecute state level bureaucrats for civil rights violations, interstate drug interdiction overlapping with local law enforcement, state and local election oversight, and competing border issues. A federal presence on the state court bench represents a potentially strong independent influence that is—according to at least two judges who claim not to advocate for any others—unwelcome.
At Weightier Matter we think that kind of diversity may be well worth welcoming, and keeping, on the Board of San Diego County’s most important law organization.
The irony of the controversy between Keehn, THLA, and the San Diego establishment is too rich to be overlooked. THLA’s namesake, Tom Hamonn, was a beloved civil rights activist who died of AIDS in the 1980s, having devoted his short life and career fighting for outsiders who were overlooked or mistreated by the San Diego power elite. Tom Hamonn Lawyer’s Association is named for him to honor those values and his commitment to the rights of the unwelcome and disparaged at a time when the San Diego powers that be were not so friendly-especially to those with alternative lifetyles. THLA’s decision today to side with a status quo that by many measures does not share Mr. Hamonn’s values of openness and fair play for all leads to perhaps the most important question no one has yet asked:
“What would Tom do?”
Stay tuned as Carpe Dicta and Weightier Matter bring more coverage and analysis of a race that’s shaping up to be a real choice between an ambitious novel talent and business as usual in San Diego.