Declarations and Exclusions

Decs&Excs Gets Results (That's My Story and I'm Sticking To It)

This past Wednesday, after writing up my post ["Vox Populunacy," infra] about local Los Angeles voters' ill-informed removal of Judge Dzintra Janavs in favor of a non-practicing attorney-turned-bagel-shop-owner, I did something I have not done before: I wrote a letter to the Editors of the Los Angeles Times to comment on the story.  Here is the text of my letter:

To the Editors:

I have appeared before Judge Dzintra Janavs dozens of times in the past.  She probably ruled against my clients’ positions as often as she ruled for them, but she was a hard working, very smart and very effective judge.  Her defeat in Tuesday’s election is saddening, and that she should be eliminated in favor of a partisan bakery owner – who 'ran against her because she was Republican' -- only adds insult to injury.

But all hope is not lost:

Judge Janavs was not removed from the bench for incompetence or misconduct, and she is as well-qualified now as she ever was.  There is nothing to prevent Governor Schwarzenegger from reappointing Judge Janavs to the bench whenever the next vacancy opens on the Los Angeles Superior Court.

Informed Democrats are as appalled as anyone else over this election result.  Reappointing Judge Janavs would be a non-partisan gesture maintaining the caliber of justice dispensed in Los Angeles.  Thoughtful citizens of all political persuasions should urge the Governor to correct this error and to return Judge Janavs to the bench where she belongs.

[Emphasis added.]

Today, I have learned that the awesome prognosticatory powers of the blogosphere were apparently on display in that letter, because the Times reports that the Governor is going to do exactly as I recommended:

The voters spoke, and now it's the governor's turn.

Less than 72 hours after the Los Angeles County electorate replaced Judge Dzintra Janavs with a bagel store owner with limited legal experience, Gov. Arnold Schwarzenegger announced Friday that he would reappoint the veteran jurist to a vacant seat on the bench 'as soon as she completes the paperwork.'

In Tuesday's election, Lynn Diane Olson, who co-owns Manhattan Bread & Bagel in Manhattan Beach with her husband and has barely practiced law in the last decade, bested Janavs, a 20-year veteran of the bench.

Responding to speculation that voters had failed to pick the Latvian-born Janavs in part because of her name, the Austrian-born Schwarzenegger in a written statement said: 'I can relate to the problem of having a name that is hard to pronounce.'

The governor also said the election's 'unfortunate result should not rob California of a fine jurist.'

[Emphasis added.]

So: an anticipatory "Welcome back, your honor!" from Decs&Excs to the still-Honorable judge Janavs.  And now I have to sit right down and right a few more letters. . . .

Vox Populunacy

In California, judges are most commonly appointed by the Governor, but all sitting judges must periodically stand for election.   That judicial election/reconfirmation process famously resulted in the voters' removal of California Chief Justice Rose Bird and two other justices from the state Supreme Court in 1986.

At the trial court level, when a judge is up for reconfirmation by the voters, it is possible for a candidate to run against that judge, seeking to take his or her place on the bench.   Most trial judges are unopposed -- and therefore keep their seats for another cycle -- but occasionally one will be voted out in favor of an opponent.   (Running to replace a sitting judge, or running in an election to fill the vacancy of a retiring judge, is the way in which one can become a California judge without first being appointed by the Governor.)

This year, only one current judge out of 140 on the Los Angeles Superior Court drew a challenge, and the outcome reflects rather badly on the electorate. 

In this past Tuesday's election in Los Angeles County, voters inexplicably chose to remove 20-year veteran judge Dzintra Janavs in favor of one-time attorney turned bakery owner Lynn Diane Olson.  The match up was well described in the Los Angeles Times' April 17 editorial endorsing Janavs for reelection:

Office No. 120: Dzintra Janavs is a charming, commanding, experienced and often brusque and impatient judge who earned the distinction of being the only one to draw a challenge among the more than 140 Los Angeles Superior Court judges up for election this year.  The challenge comes from Lynn Diane Olson, an attorney who has been on "inactive" status for most of her career while she ran Manhattan Bread and Bagel, in Manhattan Beach, with her husband.  Olson could articulate no good reason to challenge Janavs, except to say that a judge should have to defend her seat.  Olson may make the better bagel.  Janavs would remain by far the better judge.

[Underscoring, and bagel hyperlink, added.]

Judge Janavs has presided for over a decade in one of the central "Writs & Receivers" courtrooms in downtown Los Angeles, meaning that she has had a steady diet of complex injunctions, administrative mandamus proceedings, and the like -- tough stuff requiring intellectual heft and solid judicial demeanor.  Looking back, I would have to say that she ruled against my clients as often as she ruled in favor of them.  She was all of the things that the Times says, above all experienced, very smart, attentive and hard-working.  Even when I disagreed with one of her rulings, I had to admit that she had listened closely to my arguments and was able to articulate detailed reasons for not being persuaded by them.

The speculation prior to the election was that Ms. Olson had chosen to challenge Judge Janavs in particular not because of any quarrel with Judge Janavs' rulings or qualifications, but because the judge has a "foreign-sounding" name.  (Judge Janavs was born in Lithuania, and has the accent to prove it.)  Given that the average voter is usually completely in the dark about anyone running for a judgeship, it is all too conceivable that the sound of a name might be the particular irrelevant factor deciding how a vote is cast.

Hail and farewell, your Honor, you will be missed.

The local legal newspaper, the Los Angeles Daily Journal, reported the Olson-beats-Janavs story today, and it includes a surprise appearance by Harvey Rosenfield, the architect of Proposition 103, last seen bucking up Insurance Commissioner John Garamendi's [now-successful] campaign for the Democratic nomination for Lieutenant Governor.  The Journal does not make its content available online for non-subscribers, so I quote with emphasis added:

'It came down to her unusual name, nothing more,' said consumer advocate and attorney Harvey J. Rosenfield.

Rosenfield, who was frequently in Janavs' court when she was assigned to hundreds of consumer cases related to an insurance reform measure he promoted, said he thinks the outcome reflects a flawed system.

'The politics are very simple,' Rosenfield said.  'Nobody knows who these people are.'

The public's knowledge of a candidate should not be based on the ability to raise money to get the message out, he said. . . .

'There's something unseemly and dangerous that judges have to raise money to run for office,' he said.

Rosenfield's point has merit . . . but it is a peculiar and somewhat inconsistent sentiment coming from a man who counts among his prouder achievements Proposition 103's transformation of the office of Insurance Commissioner from an appointed to an elected post, "accountable directly to the people." 

Elective Democracy: "unseemly and dangerous" or a guarantee of "accountability to the people"?  For Harvey Rosenfield, it all seems to depend on how each particular election comes out.

C'est la Guerreamendi

Tomorrow brings us at last to the California primary election, so this will be the last of my reports on Insurance Commissioner John Garamendi's run for the Democratic nomination for Lieutenant Governor.  No doubt the Commissioner will continue to hold our attention here as he finishes out his term, and particularly as he pushes along his regulations to re-tool the factors permitted to be used in pricing automobile insurance.  On the electoral front, Decs&Excs will look to November, and begin coverage of the two nominees to replace Mr. Garamendi as Insurance Commissioner: Republican entrepreneur Steve Poizner and the expected Democratic candidate, current Lieutenant Governor and weight loss advocate Cruz Bustamante.

Many thanks to Walter Olson for his post at PointofLaw.com declaring Decs&Excs to be "Garamendi's blog nemesis," and weclome PointofLaw readers.  For those who need to catch up on the backstory in this electoral drama, please start at the bottom of the Decs&Excs Politics of Insurance - Campaign 2006 archive and scroll forward to the present day. 

And now, our final preelection report:

When is a Campaign Ad Not a Campaign Ad?

Throughout the Primary race to date, polls have consistently shown John Garamendi in the lead in the campaign for the nomination for Lieutenant Governor.  Given how large the pool of undecided voters has been, Garamendi's lead has probably been a result of his being a fixture of California statewide politics for so long: he simply had better name recognition than his opponents Jackie Speier and Liz Figueroa, who have been working the relative obscurity of the state Senate. 

Garamendi's previous poll lead notwithstanding, it has been Speier picking up the major endorsements from newspapers and important Democratic figures such as Senators Feinstein and Boxer.  Garamendi's biggest-name endorser is Al Gore, with whom Garamendi worked during his stint with the Department of the Interior in the Clinton-Gore Administration.

Beyond endorsements, Jackie Speier has also had the largest campaign war chest, and for the past several weeks has been running a pair of statewide television spots -- one focused on her accomplishments as a legislator, the other focusing on her personal story and her overcoming of severe injuries sustained in the shootout preceding the People's Temple mass suicides at Jonestown, Guiana, in 1978.  The combination of spending and endorsements seems to be paying off: the final preelection Field Poll [PDF] released this past weekend reports:

In the contested Democratic primary for Lt. Governor, State Senator Jackie Speier has pulled ahead of State Insurance Commissioner John Garamendi and State Senator Liz Figueroa.  The current poll finds Speier the choice of 30% of likely Democratic primary voters, with Garamendi at 25% and Figueroa far behind at 8%. More than one in three voters (37%) are undecided.  The current findings are a reversal of voter preferences from April when Garamendi held the lead over Speier.

Bill Bradley's invaluable New West Notes political weblog reported on Friday that the Speier campaign has also filed a complaint against the Commissioner before the state Fair Political Practices Committee, accusing the Garamendi campaign of making an end run around campaign spending limits through the formation of the so-called "Ad Hoc Consumer Coalition for Fair Insurance Rates," or AHCCFIR.  (Gesundheit!)  AHCCFIR is running an ad, featuring Commissioner Garamendi, responding to the insurance industry's advertising campaign against the Commissioner's proposed auto insurance rate regulations.

The new ad, while it shows Garamendi prominently, makes no mention of his run for Lieutenant Governor.  The Speier campaign claims the AHCCFIR ad is actually a Garamendi campaign spot because it is being run in heavy rotation in the San Francisco Bay area -- a region of the state in which the insurance industry's ads are not being run (because the urban counties around the Bay are the counties that are likely to reap the benefit of lower rates under the proposed regulations, while rural counties' rates go up.)

In a report on the Bay Area ABC affiliate, KGO, neither Garamendi nor Speier comes off particularly well, as Garamendi tries to change the subject and Speier goes overboard on restricting political speech:

John Garamendi, candidate for Lt. Governor:  'They're not campaign ads.  They are ads that are a direct counter to what the insurance industry is doing.  The insurance industry has $2.5 million dollars out there, attacking me for trying to implement the will of the people.' 

Garamendi also told us he's not at all concerned about the complaint Speier's camp filed over his ad with the state's Fair Political Practices Commission.

John Garamendi, candidate for Lt. Governor: 'I'm not concerned at all.  What I am concerned about is who's side is she on?  Has she said anything about implementing the will of the voters?'

Jackie Speier, candidate for Lt. Governor: 'I think what we're going to have to do with these advocacy groups is prevent them from operating during the last three or four months of a campaign in which the person who's created the committee is campaigning.'

I have been unable to find an online copy of the new Garamendi ad; the video version of the KGO story (reachable through the link above) includes a fleeting excerpt.

Those who have followed the Commissioner's claims that the insurers' advertisements are part of an "extortion" campaign will recall that Garamendi's key objection to the ads is that they would negatively affect his campaign for Lieutenant Governor.  And yet, in response to Speier's complaints, Garamendi now assures us that his own ads covering exactly the same territory as those of the insurance industry (and featuring Garamendi himself as spokesperson for the "ad hoc" committee of "consumers") have nothing whatever to do with his campaign for Lieutenant Governor. 

Here is an easy way to test the question of whether these ads are or are not related to the election: On the day after the primary, when the battle between Garamendi and Speier has been concluded, the dispute over auto insurance rates will still be going on.  Will the AHCCFIR ads still be running?

Hmmmmmm, I wonder . . . .

Special Request to California Readers of Declarations & Exclusions:

The primary campaign has been a sorry spectacle all around.  Don't let that stop you.  Please vote on June 6 for the party and candidates of your choice.  An unexercised franchise gets flabby and useless.  Pump it up, and cast that ballot!