"Of particular concern is that Mr. McLaughlin does not see the need to check with a judicial ethics expert about the possibilities of being conflicted out of serving on the bench."

 

(Judge Canning: Paul Swenson photography)

I previously posted about Humboldt Superior Court Judge Timothy Canning's endorsement of Steve Steward as the next Humboldt Superior Court Judge. 

Just a couple of minutes ago, this letter to the editor was sent out to me, LOCO's Hank Sims, Times-Standard's John Richmond, Mad River Union and NCJ's Thad from Judge Canning. 

For the same reasons I made an exception and printed Deputy DA Roger Rees statement about Assistant Deputy District Attorney Stacey Eads who is one of three candidates running for Humboldt District Attorney, I am printing Judge Canning's statement about Deputy District Attorney Steve Steward who is one of the candidates for Humboldt Superior Court Judge. The other candidate is Deputy Public Defender Ben McLaughlin. Judge Kelly Neel is the significant other Judge Canning is referring to in his statement. 

Unlike stleath, anonymous attacks of certain candidate supporters on some local media outlets, I  I use my name,  Mr. Rees used his name and Judge Canning used his name. 

I have a good relationship with both Mr. Steward and Ben. Both have ads on my site. I have given both equal coverage. 

Judge Canning provided information for verification. His entire statement is printed below.

In addition to the reasons stated by Mr. Steward in his recent press release regarding my endorsement of him for superior court judge,  I also have  concerns about Mr. McLaughlin serving on the same bench with his significant other, with whom he has a close familial relationship.

For a little background, in responding to a question about disqualifications, Mr. McLaughlin gave the impression that the superior court judges in Humboldt did not have a concern about disqualifications or his relationship with another superior court judge, should he be elected. 

That’s not accurate.  In fact, Mr. McLaughlin never asked me about my  concerns.  After reading his statement,  I requested Mr. McLaughlin to clarify or retract it.  After initially promising to do so, he later refused.  Hence, this letter. 

I am concerned about increasing disqualifications should Mr. McLaughlin be elected.  It is no secret that Mr. McLaughlin is in a long-term committed or familial relationship with Judge Neel of the California Superior Court for Humboldt County.  If elected, any of Mr. McLaughlin's disqualifications would likely also disqualify Judge Neel.  So, for example, if Mr. McLaughlin is close personal friends with a particular attorney, not only would he be disqualified from handling cases in which that particular attorney is involved, but so would Judge Neel because of Mr. McLaughlin's  relationship with her. 

Currently, we would lose only one judge in that situation -- Judge Neel.  If Mr. McLaughlin is elected to the bench, we would lose two judges available for appointment to those cases -- Judge Neel and Mr. McLaughlin-- or one-fourth of the bench (currently we have seven judges and one court commissioner serving on the bench). 

Another concern is the ethics of serving on the same bench with a spouse or with someone in a close familial relationship.   

Under federal law, spouses (or those with close familial relationships) are prohibited from serving together as judges on the same bench.  28 U.S.C.A.  section 458.    In enacting the latest revision to that law, in the 1990s, the proponents of the bill stated:

"When going to trial over serious, life changing issues, a litigant must be assured of the right to be treated fairly. When a judge sits in the position to over-turn the decision of another judge who is a close relative sitting on a panel of judges, the litigant clearly is going to question the impartiality and fairness of the final court decision. Preventing close family members from serving on the same court is a small price to pay to avoid the appearance of a loss of credibility of our court system."  144 Cong. Rec. H9985-01, 144 Cong. Rec. H9985-01, H9986-H9987, 1998 WL 694712

As far as I know,  California does not have a similar express statutory restriction on spouses (or those in a close familial relationship) from serving on the same bench.  Nepotism restrictions seem to be handled on an agency- by-agency basis instead of a  state-wide rule.  However,  the rationale behind the federal prohibition on spouses serving as judges on the same bench seems to apply with equal force  to California judges --to avoid the loss of credibility and impartiality among our judges.

Of particular concern is that Mr. McLaughlin does not see the need to check with a judicial ethics expert about the possibilities of being conflicted out of serving on the bench.  My understanding is that he asked a couple of judges about their opinion  (all of whom certainly have a working knowledge of judicial ethics), but he has not sought advice from experts in the field of judicial ethics.

Though I too have a working knowledge of judicial ethics,  I am not an expert in the field, nor have I researched all the rules and exceptions that might apply to Mr. McLaughlin's situation.  I find it troublesome that Mr. McLaughlin has not done so. 

Thank you,

Hon. Timothy A. Canning

Eureka, CA

Related post:

https://johnchiv.blogspot.com/2022/05/steven-steward-to-throw-first-pitch-at.html?m=1