Blocking the bench
Citizens dispute local judicial races
Linda Bloom is the first person to admit she’s angry. You would be, too, she insists, if you’d spent more than a $1 million in attorney fees to recover what you believe was already rightfully yours.
“I had to pay more money than I was originally seeking in the first place,” she fumes.
In 2000, Bloom and her brother, Kevin Conley, filed suit in Sacramento Superior Court to regain their proper shares in Sacramento A-1 Door, a large commercial- and residential-building supply company partly owned by their families.
They retained local firm Hansen, Boyd, Culhane & Watson, which later withdrew from the case “after the attorney-client relationship broke down,” according to court documents. With a new attorney, Bloom and Conley won their case the second time out, then sued Hansen, Boyd, Culhane & Watson for malpractice. They lost.
Last week, she and her brother paid $300,000 to Hansen, Boyd, Culhane & Watson after losing their final case, an acrimonious attorney malpractice lawsuit filed against the local law firm.
Bloom may have lost that battle, but the war isn’t over yet.
Kevin Culhane, of Hansen, Boyd, Culhane & Watson (the firm has since changed its name), happens to be one of two unopposed candidates running for the Sacramento County Superior Court’s two open judicial seats this election season. Attorney Marjorie Koller is running for the second open seat. After Culhane and Koller’s names failed to appear on the June primary ballot, as required by county election guidelines, Bloom’s friend and business associate Thomas Worden filed an affidavit in Superior Court contesting the election.
Worden is a retired Air Force officer with no legal experience, but his pro per filing isn’t being taken lightly. Culhane, Koller and Raoul Thorbourne (an incumbent judge appointed by Gov. Arnold Schwarzenegger last year who was added to the affidavit because, like Culhane, he doesn’t reside in Sacramento County) have retained noted attorney Charles Bell, occasional adviser to Gov. Schwarzenegger and one of the state’s foremost experts on state election law. Meanwhile, for the local judiciary, the case has become something of a hot potato. So far, four Superior Court judges have recused themselves from hearing it to avoid the appearance of a conflict of interest.
Worden first learned Culhane was running for the seat after reading a Sacramento Bee article last March. The story noted that since no one was opposing Culhane or Koller, the pair would automatically be seated on the bench. “Culhane will neither have been appointed nor elected—technically at least—when he puts on the robes for the first time in January,” wrote Bee reporter Bobby Caina Calvan, whose article subsequently concluded that’s just the way the system works.
But as Worden discovered upon examining the state’s constitution and elections code, that may not be the way the system is supposed to work.
“From what I read, that wasn’t the process at all,” he says. “They should have stood for election in June.”
According to Worden’s interpretation of state and local election guidelines, only an unopposed incumbent judge is permitted to retain his seat without ever having his name placed on the ballot. The names of unopposed candidates for open judicial seats must appear on the statewide June primary ballot.
“The name of the non-incumbent candidates … did not appear on the ballot,” Worden contends in the affidavit. “Thus they did not receive a majority of votes cast for their respective offices. They were not elected at the primary election. … They are not eligible to appear on the ballot or to be elected without appearing on the ballot at the General Election in November.”
In addition, Worden alleges that Culhane, Koller and Thorbourne are not qualified to run for office because they don’t reside in Sacramento County.
In an attempt to contest the legal sufficiency of the affidavit (a filing known as a demurrer), attorney Charles Bell refuted Worden’s argument. The California Elections Code requires “the occurrence of an election before the election may be contested,” Bell countered. “Defendants Culhane and Koller did not participate in the election that is the subject of this contest.”
In other words, Worden can’t contest the June election because the candidates weren’t on the ballot. Bell argues that state law trumps county guidelines and “registrars of voters are given the option to decide whether to place unopposed judicial candidates on the June ballot or the November ballot.” Contrary to the Bee story, Bell insisted Culhane and Koller’s names will appear on the November ballot.
However, the decision to place the candidates’ names on the November ballot only came after Worden contested the June primary, according to Brad Buyse, manager of the registrar’s campaign services division.
“For precautionary purposes, they will be on the ballot for the countywide election in November,” says Buyse, who added that the precaution was necessary in case Worden successfully contests the election. While the law is clear in regard to unopposed incumbent judges, it’s more murky in this particular case.
“California state election code is very vague about this,” Buyse says. “Hopefully, something will eventually be written regarding this.”
When asked how the electorate is supposed to know who’s running if their name isn’t on the ballot, Buyse answered, “That’s a good question.”
According to Bell, the state code’s residency requirement isn’t murky at all.
“Residency challenges similar to the contestant’s are as old as the California Constitution itself,” Bell added in the demurrer. “These challenges are rejected as a matter of routine, with courts summarily concluding that the only eligibility requirements for judicial candidates is membership in the California State Bar for a requisite time period, as called for in the California Constitution.”
Worden concedes that the residency challenge is the weakest link in his argument. But the fact that so far four judges have recused themselves has understandably bolstered his confidence.
“It’s a little closed club,” Worden says. “It’s beginning to look like to me that the people don’t pick the judges, the judges pick the judges.”
So far, there has been no ruling in the case—in large part because no judge has yet agreed to hear it. If those judges can’t render a fair decision in the case because of a potential conflict of interest, Bloom wonders why the same logic doesn’t apply to Superior Court Judge Judy Hersher, who presided over the malpractice lawsuit against Hansen, Boyd, Culhane & Watson. According to campaign documents on file with the registrar, Hersher endorsed Kevin Culhane’s candidacy even as the malpractice suit trial was ongoing.
On the same document, 10 out of the 11 justices on the state’s Third District appellate court also endorsed Culhane’s candidacy, even as they were rejecting every writ filed by Bloom against Hansen, Boyd, Culhane & Watson.
“They should have recused themselves from his candidacy,” she says. “They basically denied every writ. I believed if I did not settle, I would go bankrupt if I decided to appeal. There’s no way I was going to get a fair hearing.”
Thomas Hiltachk, a partner in Bell, McAndrews & Hiltachk, said Culhane, Koller and Thorbourne could not comment on this story directly because the matter has yet to be decided in court. He reiterated Bell’s claim that the candidates have followed the letter of the law.
“Their names are going to be on the November ballot,” he said. “They are ready, willing and happy to stand for election, just as they always thought they would.”