Judge reprimanded for drunken driving, but does not lose job despite lying about it and trying to get preferential treatment

A Sonoma County judge was censured by the state's judicial disciplinary agency Thursday for driving drunk, lying about it and trying to get preferential treatment by telling the arresting officers that both she and her husband were judges.

Superior Court Judge Elaine Rushing's criminal conduct was "utterly irreconcilable with minimum standards expected of a judge,'' and her attempt to use the prestige of her office for personal advantage was "reprehensible,'' the Commission on Judicial Performance said.

On the other hand, the commission said, her wrongdoing arose from "one drunken lapse of judgment to get behind the wheel of her car,'' and she has no other history of misconduct or discipline and has not disputed the charges against her. Her actions warrant the most severe reprimand that the state can impose but do not justify removal from office, the commission said.

Rushing's lawyer, James Murphy, said the incident and its aftermath were "obviously a humbling experience'' for the judge. He said Rushing "has never denied that she made a mistake by drinking and driving,'' but doesn't remember most of what happened after she drove her Porsche into a wall in Santa Rosa in June 2005 and suffered a slight head injury.

"This was a case that Judge Rushing wanted to resolve ... a distraction from her responsibilities,'' Murphy said.

According to the commission's account, which Rushing did not deny, the judge drove away after hitting the wall without notifying law enforcement or the owners of the property she had damaged. About two miles down the road, she drove her car into a ditch.

Two passers-by asked if she needed help, but Rushing said she was all right and falsely told one that her husband was with her, the commission said. She also told a firefighter and a California Highway Patrol officer who arrived at the scene that two other people had been in the car and that one of them had been driving.

When the patrol officer questioned her story, Rushing said she was a judge and refused to answer any more questions or take sobriety tests, the commission said. She repeatedly invoked her judicial status when she was arrested, handcuffed and put in a patrol car, and asked the officer to call her husband, Conrad Rushing, a state Court of Appeal justice in San Jose.

Elaine Rushing pleaded no contest to drunken driving and was found to have had a blood-alcohol level of at least 0.20 percent, more than twice the legal limit, the commission said. She was sentenced to 10 days in jail, which she served in a work-release program.

Rushing, 58, was appointed by Gov. Pete Wilson in 1992 as the first woman on the Superior Court bench in Sonoma County. She had practiced business law since graduating with honors from UC Hastings College of the Law in 1979. She last appeared on the ballot in 2004 and won a six-year term.

The commission announced her censure the same day it censured another judge, Bernard Schwartz of the Riverside County Superior Court, for a similar incident.

Schwartz, a 2003 appointee of Gov. Gray Davis, was arrested in July 2005 while driving drunk in Pismo Beach (San Luis Obispo County) and repeatedly tried to get the officers to let him go by telling them he was a judge, the commission said. He later pleaded no contest and was sentenced to two days in jail.

Can or should DWI cases be tried before such judges? I do not advocate anyone automatically losing their job by reason of atypical mental lapses (even when they extend to post-arrest conduct). But, isn't it more difficult to imagine a fair trial for the state before someone with this type of experience?

First, if you check the history of how judges get on the bench, I think you will find that most are initially appointed by the Governor or, if local judges, by some local governing authority.

Second, how does the appointment process improve judging? Both appointment and elections involve political decision-making. Just pick your poison. Personally, I like the democratic process of election. The process of staying in office without ever facing an opponent can make for very arrogant judges.

Third, from the sound of it, the real problem is with the manner in which judges are judged. One of the Dakotas is currently voting on whether to permit citizens to sue the judge for bad decisions. That doesn't sound good. On the other hand, life-time appointments also sounds bad.

Any process will involve the application of human judgment. There is no perfect form of government. The best form is one that keeps everyone on their toes, subject to public scrutiny, regardless how irritating that may be to individual officials.

Having been raised in the home-state of the most vaunted appointment-retention system (Missouri), I can tell you that, in my opinion, the quality of judges in Texas is much better than in Missouri.

The problem with the appointment-retention system is that you can never get rid of bad judges since almost no judge is ever defeated in a retention election.

We have fallen victim to the difficulty of imparting irony or sarcasm via the net. I posted the article to point out one of the many problems inherent in the judicial appointment scheme used in a number of states and periodically suggested as an approach we here in the Great State ought to adopt. These judges mentioned in the article are appointed and I assume are
periodically "retained" by voters (as is usually the case). The problem with retention elections is that there is no oponent to outline his superiority to the incumbent or to remind voters of the current office-holder's misbehavior. With the passage of a couple of years, the average voter will not remember the antics of this pair.

Ah, now it all makes sense. We need an internet protocol for sarcasm.

Let's at least be consistent if judges are to be elected. All visiting judges should also be elected to ensure democratic values are upheld and accountability maintained. This business of permitting retired, and worse still deposed, judges to sit is truly bizarre. How difficult can it be to have a pool of elected judges who can fill in as required? Visiting judges conduct considerable business and while they might answer to the presiding judge in some small way, the system is flawed while they are not elected to their positions.

A good place to start would be to make judicial elections nonpartisan. There have been way too many instances of unqualified judges getting elected simply because they have an "R" or a "D" by their name on the ballot while the voting public has absolutely no idea what the candidate's views or beliefs might be. As we are finding out more by the day, party affiliation can be very misleading when it comes to predicting a judge's judicial philosophy.

And what makes you think the public would be more informed about a judge when he/she has no party affiliation?

I agree that some judges have no connection to the party's foundations. And some judges lie about their philosophy. In both cases, the electorate is misled.

At least with a party affiliation, there is a general public discussion of the differences in philosophy. With no party affiliation, all the names are equal. That is, frankly, a bit more of a concern. That would get people like Gene Kelly elected.

quote:

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Originally posted by Lee Hon:
A good place to start would be to make judicial elections nonpartisan.

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Don't hold your breath. The R & D parties won't let it happen. They need judicial and down-ballot races to be polarized in order to give local party apparatchiks somebody to boss around and collect favors from.

The problem with partisan judicial elections lies primarily with straight party ticket voting. And without naming names, I think we're all well too aware of instances where some candidates managed to get themselves elected simply because they happened to be affiliated with a particular political party--and then turned out to be unqualified or have a judicial philosophy that is completely at odds with their party affiliation.

And really, when you get down to it, if the ultimate measure of a judge is whether they can be "fair and impartial," why should judges be required to affiliate with a party or party platform?

Seems to me that by taking away the issue of straight party ticket voting, and maybe even removing judicial elections from the November general election ballot, conscientious voters would be forced to educate themselves on the relative qualifications and philosophies of judicial candidates before they voted.

JB, is it any more dangerous to cast an uninformed vote for someone because his name is Gene Kelly than it is to vote for someone simply because he or she happens to have an "R" or a "D" by his name?

Lee, my answer would be "yes," it is more dangerous to vote for someone without a party affiliation. Although being associated with a political party is by no means a secure method of identifying a candidate's philosophy, it is a rough way to screen.

In general, Democratic candidates for office are more liberal in their opinions about criminal justice than Republican candidates. Although some judges will sway with the political winds, picking the party that can best get them elected, for the most part judges are loyal to their philosophical beliefs.

As an example, I'm pretty sure Charlie Baird would never run as a Republican. Likewise, I don't see Sharon Keller running as a Democrat.

To the extent that an uninformed public uses that sort of choosing mechanism, it is still better than listening to the sound of a name and making a choice.

Ballot measures propose limits on judicial authority

By Valerie Richardson
THE WASHINGTON TIMES
Published October 24, 2006

DENVER -- Western conservatives are gunning for the judiciary this election year with a half-dozen ballot measures that would rope in the authority of what they describe as activist judges.
Case in point is Colorado, where former state Senate leader John Andrews tried for years to solve the problem of activist judges who he said routinely legislated from the bench, often at the expense of conservatives.
His efforts in the legislature fell short, but Mr. Andrews isn't finished. He is the prime mover behind Amendment 40, a proposed constitutional amendment that would limit state appellate judges to 10-year terms, making Colorado the first state to limit the office of top-tier judges.
"We see a pattern of ideological and political decisions from the bench, and it points to a consistent tendency of appellate judges in Colorado to rewrite the law," said Mr. Andrews, now a fellow with the Claremont Institute, after a press conference yesterday at the state Capitol.
Amendment 40 faces overwhelming opposition of the state's legal and political establishment. It is opposed by virtually every top lawmaker in the state, including Republican Gov. Bill Owens, Republican Attorney General John Suthers, and former Democratic Govs. Richard Lamm and Roy Romer. The state's leading newspapers have also editorialized against the proposal.
They argue that Amendment 40 would force out good judges, create judicial backlogs and empower governors to stack the courts with partisan picks. The measure would result in a one-time retroactive removal of five Supreme Court judges and seven appellate court judges in 2009, which critics say would deprive the courts of decades of experience.
"This is a misguided measure that would be devastating to Colorado courts," Mr. Suthers said. "Because it is retroactive, a majority of Colorado's justices and judges will be kicked off the bench. This will be bad for Colorado citizens and the judiciary."
Mr. Andrews insists the measure is not an extreme solution, noting that most justices leave the state Supreme Court after less than 10 years anyway.
"This is more of a safeguard against those judges who say they can stay around forever, rather than a radical restructuring of the judiciary," Mr. Andrews said. "At the same time, it's partly symbolic. It sends a message that people are fed up with lawmaking from the bench. Such a rebuke would be felt in Colorado but also other states."
A truly radical solution would be Amendment E, the South Dakota proposal that would eliminate judicial immunity and allow citizens to sue judges. Known as "Jail 4 Judges," the measure would clear the path for lawsuits for offenses that include "blocking of a lawful conclusion of a case."
In Montana, voters will decide whether to approve CI-98, a measure that would allow residents to recall justices or judges for "any reason" and says removal from office is "a political question answered solely by ... the recall election." Judges now may be recalled only for reasons such as mental incompetence and official misconduct.
An Oregon amendment would require appellate judges to be elected from newly created geographic districts in an effort to give the state's more conservative rural areas greater representation on the state's liberal-leaning courts.
In Colorado, a local television poll conducted last month found Amendment 40 leading 55 percent to 40 percent, despite the efforts of the better-financed opposition campaign. Mr. Andrews points to a series of court rulings, most recently the state Supreme Court's decision to disqualify a ballot measure that would have denied non-emergency state services to illegal aliens.
Even though he expects to be outspent by at least 3-to-1 in the campaign's final weeks, Mr. Andrews says he is convinced most voters will respond positively to the idea of reining in the judiciary.
"The story with term limits in Colorado has been that the establishment is always against them and the people always support them," he said.