The run-off election between John Creighton and Victoria Kolakowski for a seat on the Alameda County Superior Court shows how complicated choosing a judicial candidate can be. From evaluating each candidate’s credentials to speculating about how each might act from the bench, Alameda County voters have a lot of thinking to do if they want to avoid the dartboard approach this November.
When it comes to the public selection of a judge, “You don’t really pay much attention until you want to come to court,” Creighton said, “and then it becomes very important.”
If you are robbed or accused of robbing, if you have a contract dispute, or if you go through a divorce, you could end up in California’s Superior Court, with either Kolakowski or Creighton hearing your side of the story. The judge selected, Kolakawski said in a separate interview, might be someone “who’s going to make a decision that will change your life.”
Voters rarely have the chance to choose a brand-new judge, because although a Superior Court judge must stand for re-election every six years, incumbents are heavily favored against any opposition. What’s more, the governor has the right to appoint a Superior Court judge when a seat is vacant, which further reduces the number of judicial elections.
With seat nine on the Superior Court open this fall, three candidates ran in a June primary for the position, and Kolakowski came out ahead, with 46 percent of the vote. The results triggered a runoff with second-place candidate Creighton, who garnered 32 percent of the vote.
But although voters get to choose the next Superior Court judge on November 2, a judicial candidate isn’t allowed to give voters the sort of information they would normally use to pick a mayor or member of city council. In California, judicial elections are non-partisan, and election rules say candidates must not promise how they will rule in a particular kind of case.
“They can’t say, ‘When I get in there I’m going to fight for gay rights, or property rights,” said David Levine, a UC Hastings law professor who specializes in California procedure. “Judges can’t go that far.”
So what do voters have to work with?
Both personal and professional backgrounds come into play, and Creighton and Kolakowski are notably different on both fronts. Kolakowski, for example, says she would be proud to be the nation’s first transgender trial judge, providing a positive example for a group of people typically seen either as sex workers or hate crime victims.
Creighton, who lives in Oakland with his wife and two daughters, holds up his professional record of defending victims in court as evidence of his personal commitment to justice. In particular, he emphasizes his work trying cases involving domestic violence, sexual assault, and murder.
Creighton has been a deputy district attorney in Alameda County for 25 years, trying criminal cases in the region’s courts. He says his background trying criminal cases gives him a great deal of courtroom know-how, especially when it comes to procedure for admitting evidence. “Given the backlog” of cases, Creighton said, “we need someone who can start the job from day one without having to spend a lot of time learning the ropes. I don’t think my opponent has ever tried a case.”
In addition to trying cases as part of the Gang Prosecution Unit, Creighton has worked with a city gang intervention program that offers what he calls a “fair warning call” to gang members. “We target these members who are influential, and we call them into meeting with all of these services,” Creighton said. Social workers and law enforcement officials offer to connect suspected gang members with employment opportunities and other support so that they can transition out of their gang.
Creighton said he’d like to expand these efforts by adding to the county Superior Court a special gang court that would emulate the county’s existing drug court, homeless court, and elder abuse court. It’s the kind of campaign promise a judge actually is actually permitted to make, but the candidate still worded it carefully. “Whether I can do that is up to the presiding judge and others who have a say,” Creighton said, “but that would be my desire.”
Creighton’s experience as prosecutor means he’d have to shift his approach to the courtroom. “He’s going to have to sort of take himself out of the advocate seat and put himself in the judge seat, which is a different mindset,” said Alice Kaswan, a University of San Francisco law professor.
Kolakowski comes with a different kind of know-how. While she hasn’t tried criminal cases, she has worked as a judge. She currently serves as a California Public Utilities Commission administrative law judge, making her part of a specialized field that shapes how government agencies apply the law to their policies.
“Ultimately my job as an administrative law judge is to make sure that the public interest is always maintained,” Kolakowski said. Procedurally, this means all interested parties get the chance “to put into the record relevant information, and that they are able to cross examine each other, when it’s a disputed fact, under oath.”
Kaswan said an administrative law judge is supposed “to listen to competing interests and guide them to a resolution.”
One of the biggest issues Kolakowski dealt with as an administrative law judge concerned the installation of power lines to bring wind energy from remote areas of southern California to urban Los Angeles power grids. The main conflict in these cases, Kolakowski said, “is that nobody wants a line near them, but everybody wants the power that comes from them.”
Responding to the suggestion that she is unfamiliar with the rules of a criminal court, Kolakowski said, “The standards of evidence are different, but I know what the differences are.”
Kolakowski, law professor Levine observed, would have to do more than learn the new rules of admissible evidence as a Superior Court judge. “She’s going to have some experience as a judge, but it’s going to be all civil experience, all subject matter-limited,” Levine said. While this transition can be challenging, “It can be done, and judges do it all the time,” Levine said.
“I wouldn’t say one of them will bring superior experience,” Kaswan said. “Each of them is going to have things they’re going to have to learn. It weighs on what you think of that person’s common sense, commitment, and judgment.”
While Kolakowski is quick to say that her status as a transgender woman is not the reason voters should choose her, she does think her experiences allow her to relate to people in her courtroom who are going through difficult times. “I can tell people, ‘Look, I know what it’s like to lose your job and think that you don’t have a future, when you sometimes feel like you’re unloved or unlovable. I understand that, but you can get past that,’” she said.
Kolakowski transitioned from male to female in the 1980s, during her final semester of law school at Louisiana State University, where she said she faced a lot of ignorance and ostracism. Since moving to the Bay Area, she has earned a Woman of the Year award from the East Bay Lesbian/Gay Democratic Club and served as an honorary marshal at the San Francisco LGBT Pride Celebration. In addition, she has served as chair or board member for many legal advocacy organizations that focus on gay and transgender issues.
For his part, Creighton says his sense of compassion will drive his actions as a judge. At a recent candidate forum held by the League of Women Voters of Oakland, Creighton said his judicial philosophy is to protect “those who are most powerless,” and to treat them with “respect, compassion and sympathy.”
Creighton, a Vietnam veteran who works on the board of Planned Parenthood, said, “I make every effort to protect those who are less powerful and more subject to the kind of abuse I think she is referring to. I think I can address those issues as well because of my experience.”