A gay Alameda County Superior Court commissioner who is running for judge said that he voted for District Attorney Pamela Price in 2022, a move that could violate judicial ethics and raises questions about impartiality. Price herself is under the threat of a recall, which could go before voters sometime this year.
Mark Fickes made the pronouncement at a meeting of the Alameda County Democratic Party Central Committee on Wednesday night; a video posted by reporter Steven Tavares, who publishes the East Bay Insiders newsletter, shows a member of the committee — which decides the Democrats' endorsements in county races, including for the bench — asking "can the candidates tell us who they voted for for district attorney in 2022?"
Answered Fickes: "Well, I guess I'll say I voted for Pamela Price."
Several people began to applaud and one shouted, "Yes!"
Subsequently Price, who in addition to serving as DA is an elected member of the central committee, voted to endorse Fickes.
Fickes went on to receive the Alameda County Democratic Party's endorsement with 30 votes, according to Tavares' newsletter.
Fickes did not return a message seeking comment.
Fickes' opponent in the March 5 race, attorney Michael Johnson, told the Bay Area Reporter over the phone January 5 that he did not answer the question himself.
"The judicial canons prohibit that kind of response," he said, adding that a formal response to Fickes will be forthcoming.
Canon No. 1 of the California Code of Judicial Ethics states that "a judge shall uphold the integrity and independence of the judiciary." Canon No. 2 states, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities."
As Tavares reported, "The [Price] vote to endorse Fickes and his proclamation on Wednesday that he voted for her in the 2022 DA's race raises questions about each other's impartiality. Any defense attorney in a courtroom with Fickes as judge and Alameda County prosecutors will certainly question whether their client will receive a fair trial."
Further, guidelines on campaigning prepared for judicial candidates by the California Judges Association's Committee on Judicial Ethics state that "Candidates may not make statements that commit the candidate with respect to cases, controversies, or issues that could come before the courts."
Price's assistant district attorneys appear in county criminal courts, and she is also currently the subject of a recall effort, which was initiated last October but needs over 93,000 signatures, or 10% the number of registered voters in the county, by March.
When a B.A.R. reporter reached out to the judge's association's ethics hotline, and identified himself as being press, the call was re-routed to Nicole Bautista, the executive director and CEO of the California Judges Association, who declined to comment for this report.
"No I don't think we're going to make any comments on that — we try to stay out of elections like this," Bautista said. "We won't comment on anything related to ethics where we encourage our members or anyone running for judicial seat to seek ethical advice, but we won't comment on that."
Johnson subsequently sent an email to the B.A.R. stating, "I commit to the voters that as a Superior Court judge I will always be impartial and act with neutrality on the bench, free of any political alliances or otherwise influencing my decisions, so that everyone who comes before me will have their matter heard only on the merits and not based or influenced by politics or even have the appearance of being influenced by any conflict of interest."
He reiterated a formal response to Fickes will be forthcoming.
"I am still processing those statements," Johnson stated.
As a commissioner who was hired by the court, Fickes is subject to the rules of the California Commission on Judicial Performance, which shares authority with a county court's presiding judge in discipline matters of commissioners, according to its website. The commission can review the local court's final action, the website states. In this case, Alameda County Superior Court Judge Thomas Nixon is the presiding judge. Nixon declined to comment to the B.A.R. for this report.
LaDoris Hazzard Cordell, a lesbian who is a retired judge of the Santa Clara County Superior Court, asked, "Why am I not shocked?"
"Everybody who wears that robe is required to know those canons and to know the rules — there's no excuses," Cordell said in a phone call with the B.A.R. January 5. "This Mark person blatantly violated the rules." (Cordell said she had not heard of Fickes until January 5.)
Cordell, who also served a term on the Palo Alto City Council, said that she taught judicial ethics.
"It was a mandatory course for all judges when they start their work," she said. "My belief is that ethics and judicial conduct and ethics is taught and it's mandatory for everyone who's a commissioner or a judge so you learn the rules and don't do stupid things, like violate them and do it so blatantly."
Cordell continued that part of the required reading for California judges states that the canons apply to both judges and commissioners, "anyone authorized to operate in a judicial capacity."
That reading includes the California Code of Judicial Ethics Canon 5A(2), which states "judges shall not publicly endorse or publicly oppose a candidate for a nonjudicial office. ... endorsement of a partisan or nonpartisan office is prohibited." Judges can be disciplined by the Commission on Judicial Performance for public endorsement of non-judicial candidates, it continues.
When someone is not on the bench at all, they are not necessarily bound by the canons, Cordell said, which would apply to Johnson as he is not a court officer at present.
Political activity that creates the appearance of bias or impropriety is also prohibited, Cordell said.
One of the examples given in the California Judicial Conduct Handbook specifically discusses "attending fundraising dinner for district attorney candidate."
"A candidate for district attorney is no ordinary nonjudicial candidate," it states. "Regardless of the facade that mere attendance is not an endorsement, the fact remains that it looks like the judge is supporting this candidate and, in the event this candidate is elected, this 'support' could create the appearance of bias." Judges can attend such dinners, but cannot receive tickets for free and "avoid any activity at the event that might appear to be a public endorsement."
Price and the California Commission on Judicial Performance did not return requests for comment for this report.
Fickes, formerly of Cannata, O'Toole, Fickes & Olson LLP (now without his name in the firm's name), had unsuccessfully run for Alameda County judge in 2020.
Price, a progressive attorney who won the DA's race with 53% of the vote in 2022, has had a controversial tenure since she started in January 2023. Last fall the group Save Alameda for Everyone, or SAFE, launched a recall effort. KTVU-TV reported that critics accuse Price of being soft on crime. She has defended her office's approach, stating that the office is reducing the use of sentencing enhancements because they contribute to racial disparities.
More recently, in late November, Price and members of her media team denied a reporter entrance to a news conference she was having. Emilie Raguso, who publishes the Berkeley Scanner website, reported that she was barred from attending the news conference, first by two staff members and then by Price when she exited an elevator. First Amendment advocates quickly criticized Price, who restored Raguso's press access, attributing the matter to an "oversight."
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