THE STRANGE CASE OF THE PERCEPTION OF BIAS

California Progress Report
Posted on September 28, 2009

California Integrated Waste Management Boardmember

Appearance may be the mother of reality

Sometime in the middle of last June, two interesting and seemingly
disconnected events occurred. The first was a decision by the United
States Supreme Court concerning the behavior of a West Virginia
judge. It seems the judge, who had been elected, rather than appointed,
had presided over a case in which he was called upon to make a decision
involving one of his largest campaign contributors. The Supreme Court
held that the judge’s behavior was improper.

More importantly for this essay, the Court went further and underscored
a principle already firmly established in the judicial branch of
government: judges must avoid the appearance of impropriety.

The second interesting event occurred at about the same time. Governor
Arnold Schwarzenegger appointed former state Senator Chuck Poochigian
to the California Appellate bench in Fresno.

Where there’s smoke…..

The two events became entwined for me in September. After two
months of vetting by the Commission on Judicial Nominees Evaluations
(the "Jenny" Commission, so named for its initials: JNE), Senator
Poochigian’s appointment came up for approval to the Commission on
Judicial Performance (CJP).

The Commission on Judicial Performance consists of only three people:
Ron George, the Chief Justice of the California Supreme Court,
Jerry Brown, the Attorney General and, in this particular case,
the Presiding Justice of the Fifth Appellate District (the bench
to which Sen. Poochigian was nominated), James A. Ardaiz. The three
heard testimony from a number of people for, and one person against,
the nomination, and unanimously confirmed on September 25, 2009.

Opposition was stated by Geoff Kors, the head of Equality California,
the statewide advocacy group on issues affecting the gay and lesbian,
bi- and transgendered, communities. Geoff testified n. Poochigian had
demonstrated bias through his opposition to bills securing rights for
the LGBT community, including bills I had authored. His testimony
was largely dismissed, though it did generate a few questions to
Sen. Poochigian about whether he was biased or not. Having "glared"
(according to press reports) at Geoff throughout his testimony,
Sen. Poochigian averred that Geoff was the one who was "biased", and
that his Armenian background made him sensitive to all minorities. He
and the Attorney General then had a "good-natured exchange" in which
Sen. Poochigian said he was "not a Neanderthal", referring to the
fact that Brown had said that very thing about him in their contest
for Attorney General.

The Commission on Judicial Performance also heard from the Executive
Director of the JNE Commission, Jon Wolff. Mr. Wolff testified that,
as the CJP knew, JNE had ranked Sen. Poochigian as Not Qualified
to serve. This rating, the very lowest a candidate can receive from
JNE, is rarely given, but Mr. Wolff told the Commission that JNE had
decided on the rating because Sen. Poochigian had not practiced law
for 21 years and had neither trial nor jury experience. He did not
mention input regarding potential bias.

This led the Chief Justice to excoriate the JNE Commission as being
in error for not considering Sen. Poochigian’s legislative service as
qualifying him for the bench, since legislators also deal with the
law and several had been appointed to the bench. Mr. Wolff did not,
of course, talk back to the Chief, and the few news outlets that
mentioned the proceedings dutifully reported that JNE had been slapped.

The truth is a bit more interesting.

There Must Be Fire….

I had been contacted by the JNE Commission last July to fill out one of
their evaluation forms on Sen. Poochigian, with whom I served in both
houses of the California legislature. This is not too unusual, as I
had been contacted in the past to evaluate various judicial nominees,
both as the President of the Los Angeles Women Lawyers’ Associa ever,
I found it interesting that they sought me out now, after my tenure
as a legislator was over. I concluded they might have done so because
someone was troubled by the possibility that the last question on the
form, dealing with bias or the appearance of bias, might bear some
relationship to the way Sen. Poochigian had performed as a legislator.

Over the last few decades, to their credit, the courts have identified
the potential bias of judges as a difficult issue, and one with which
they must deal. Even the appearance of bias can taint the faith the
populous must have in the judiciary.

I knew from experience that Sen. Poochiaign’s votes had consistently
indicated animosity to civil rights statutes regarding gender,
disability and sexual orientation.

I ranked him Not Qualified on the basis of bias and returned the
form. This apparently struck JNE as interesting and they called me
to make certain that I meant it. I indicated I did mean it, not out
of any animosity to Chuck, but simply as a matter of fact.

I’m not certain why Mr. Wolff decided not to mention this in his
testimony, since he knows the members of the Commission on Judicial
Performance do not have access to the materials that led the JNE
Commission to their decision. His testimony made it seem as though
Sen. Poochigian’s lack of trial experience was the only reason they
had found him to be Not Qualified.

If the Perceived Bias By A Practicing Attorney is Relevant to Judicial
Evaluation, Why Not Legislators?

The failures of this confirmation process, as well as the criticism
of JNE thrown out by the Chief Justice, lead me to conclude that
the exhibition of bias by a legislator during his tenure should be
considered every bit as relevant as the same demonstration of bias by
an attorney or lower court judge. Legislators have virtually nothing
to give but their votes, so it is precisely their voting history that
establishes the record of their values and biases.

While I was in the legislature, I authored 171 bills that were signed
into law, by thr concerned the civil rights of various groups. Here
is just a small set of examples of Sen. Poochigian’s abysmal record
on civil rights issues while he was in the legislature, and this is
just on some of my bills which were signed. He also voted against
hundreds more, authored by other legislators.

SB 1441 – DISCRIMINATION IN STATE PROGRAMS

This law expands the prohibition of discrimination in state operated or
funded services, activities and programs to include actual or perceived
sexual orientation and gender identity. 2006 Sen. Poochigian Voted No

SB 973 – DOMESTIC PARTNERS RETIREMENT BENEFITS

This law amends the Public Employees Retirement System (PERS), the
State Teachers Retirement System (STRS), and the County Employees
Retirement Act of 1937 to entitle retired members to elect to
change optional retirement allowances to provide for their domestic
partners. 2005 Sen. Poochigian Voted No

SB 1234 – HATE CRIMES

This measure updates and strengthens California’s hate crime statutes
regarding prosecution and sentencing, and increases law enforcement
training requirements regarding hate crimes. The measure creates a more
easily understandable standard definition of a hate crime and ensures
that victims who are targeted because of their association with a
protected class are also covered by hate crime statutes. The measure
also adds mosques and temples to the list of religious institutions
protected against hate motivated violence. 2004 Sen. Poochigian
Voted No

SB 262 – DISABLED ACCESS ENFORCEMENT

This measure addresses widespread non-compliance with California’s
disabled access laws by strengthening enforcement and education
regarding those access standards. 2003 Sen. Poochigian Voted No

SB 1301 – REPRODUCTIVE PRIVACY ACT

This law establishes a constitutionally sound basis for the protection
of reproductive privacy rights in California by incorporating the
protections set forth in Roe v Wade into California statute. 2002
Sen. Poochigian Voted No

SB 1945 – STATUTE OF LIMITATION ON HATE CRIMES (RALPH ACT This
law extends the statute of limitations period for victims of hate
violence who do not know the name of the person(s) who perpetrated
the violence. The law changes the defined time to file a complaint
from one year from the date the hate violence occurred to one year
from the discovery of the name of the person(s) perpetrating the hate
violence. In no event, however, may the filing be longer than four
years from the date the hate crime occurred. 2002 Sen. Poochigian
Voted No

SB 225 – DISCRIMINATION IN ATHLETICS

This measure prohibits discrimination in interscholastic athletics
on the same bases that discrimination is now prohibited in publicly
funded schools: on the basis of national origin, religion, color,
gender, mental or physical disability, and sexual orientation and
includes safeguards to allow private religious schools to continue to
play in interscholastic athletic leagues. 2001 Sen. Poochigian Voted No

SB 257 – HATE CRIMES

This law ensures that hate crime prevention is made a part of general
school safety planning by requiring the inclusion of existing hate
crime reporting procedures, and existing harassment and discrimination
policies in the comprehensive school safety plan which schools are
required to file with the Department of Education. 2001 Sen. Poochigian
Voted No

AB 1856 – SEXUAL HARASSMENT

This law makes individuals who engage in sexual harassment of their
coworkers personally liable under the Fair Employment and Housing Act
(FEHA) for their conduct. 2000 Sen. Poochigian Voted No

AB 2222 – DISABILITY RIGHTS

AB 2222 clarifies that definitions of "mental disability," "physical
disability," and "medical condition" may exceed federal law for the
purposes of California’s civil rights laws. It limits an employer’s
ability to require medical or psychological examinations, or make
certain medical or disability-related inquiries; and requires an
employer to engage in a good faith, interactive process to determine
reasonable accommodations for a disabled employee or applicant. 2000
Sen. Pooc

AB 537 – CALIFORNIA STUDENT SAFETY & VIOLENCE PREVENTION ACT OF 2000
This law prohibits discrimination and harassment in education on all
the same bases used in the definition of hate crimes under Penal Code
Section 422.6 (a). This includes prohibitions against discrimination
on the basis of actual or perceived race, color, religion, ancestry,
national origin, disability, gender, or sexual orientation and applies
to all educational institutions that receive state funding. Religiously
controlled schools, colleges and universities are exempt. 1999
Sen. Poochigian Voted No

If, as the Chief insisted, a person’s experience as a legislator should
count in qualifying him for the bench, and, in Sen. Poochigian’s case,
not just the Superior Court, but the Appellate Court, then the record
compiled during that experience should also be examined for prejudice
and lack of fairness. These issues were not explored in the case of the
new Appellate Justice for Fresno. As a result, the JNE Commission is
under fire, and the resolve of the court to explore potential biases
of of judicial candidates has been weakened. It’s time for a new look.

Sheila James Kuehl was appointed to the California Integrated Waste
Management Board on December 1, 2008, after having served eight years
in the State Senate and six years in the State Assembly. Senator Kuehl
served as chair of the Senate Natural Resources and Water Committee
from 2000-2006. Her website is

From: Emil Lazarian | Ararat NewsPress