While judge post goes vacant, ‘temp’ judges remain
The judges have never received a vote in Butte County because they’ve never had to run for office. Instead, in the words of one local attorney, their temporary assignments are “rubber stamped” by the state’s chief justice each time they expire, which according to the county court administration office is every 30 months.
Last year the state Legislature created a new judgeship in Butte, bringing the total to 10 in a county where courts are buried by a relatively heavy caseload. Besides Lamb and McNelis, retired Judges Ann Rutherford and Loyd Mulkey, who have postponed full-time retirement, help ease that load.
Still, the new position will stay vacant until Gov. Gray Davis gets around to assigning a permanent judge to the standard six-year term. There is no telling when that will happen or who that appointee might be, said Orrin Banta, administrative assistant for Butte County Courts.
District Attorney Mike Ramsey indicated that person would be Lamb and that Davis’ appointment could come within the next few months.
But until the governor acts, the temporary judges will keep getting reassigned, much to the dismay of Chico attorney William Mayo.
“This is disenfranchising the people of Butte County who don’t get to vote,” says Mayo, who challenged the legality of Lamb’s position in a case last fall. He dropped the challenge when the state Attorney General’s Office said it would not cooperate in his efforts to subpoena Lamb’s judicial and personal records.
“Is Lamb a nice guy? Yes. Does Bill Mayo like him? Yes. But this not a popularity contest,” said Mayo.
McNelis has been on temporary assignment since the mid-1980s. In 1989 his authority as a legally sitting judge was challenged by Oroville attorney Maxim Bach. In that case, the California Third District Court of Appeal ruled in favor of McNelis. But 12 years later, the wording of the judgment, at least in part, sounds a bit self-defeating.
“It may be true,” the judgment reads, “as argued by plaintiff, that an assignment might conceivably result in a ‘loophole’ where an assigned judge may sit for substantial periods of time on a court record without complying with the restrictions under which an incumbent judge would operate. But this … was contemplated and countenanced by the Constitution on the assumption the temporary nature of assignments would inevitably render the service [minor]. As the Supreme Court noted long ago, it must be ‘taken for granted’ that an assignment made in proper exercise of the wise discretion of the Chief Justice will not continue indefinitely.”
What it comes down to is how California Chief Justice Ronald George defines the word “temporary.” Mayo says that George, as chief justice and head of the state Judicial Council, does not operated under strict ordinance but rather under “some sort of guidelines.”
“Four years—let alone 16—is not temporary,” Mayo said.
Currently Lamb is an acting judge on a full-time basis, while McNelis is working half time, said court administrative assistant Banta.
Judges serve six-year terms and like any other elected official must run campaigns to get re-elected, meaning their behavior and performance are accountable to the voters. At this point, as Mayo points out, McNelis has been a judge in Butte County for close to the equivalent of three terms without ever having to petition for a single vote.
“Judges who are elected or appointed [by the governor] must meet certain criteria, such as living in the county where they preside,” Mayo said.
Judges on temporary assignment, regardless of how long temporary turns out to be, do not.