A gay Alameda County Superior Court commissioner is facing off with a temporary judge for a permanent seat on the bench. But this battle for the black robe is unusual because it's already mired in a controversy over judicial ethics.
It stems from Commissioner Mark Fickes telling the Alameda County Democratic Party Central Committee earlier this month that he voted for District Attorney Pamela Price in 2022 while seeking its endorsement. The county party did vote to endorse Fickes — including with a yes vote from Price, who is on the committee, as the Bay Area Reporter previously reported.
Fickes has not returned subsequent messages seeking comment. He has been accused of violating judicial ethics both by Michael Johnson, his opponent in the race for Seat No. 12 on the Alameda County Superior Court, and others.
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.
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."
As a court commissioner 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. when a reporter reached out on January 5.
Fickes
Fickes, 57, did answer an endorsement questionnaire sent to him from the B.A.R.'s editorial board late last year. He stated that he's been a member of Bay Area Lawyers for Individual Freedom, the local LGBTQ bar association, since 1992. He became a commissioner of the Superior Court in 2023, after a failed run for judge in 2020 against lesbian Elena Condes, as the B.A.R. reported. From 2014 to 2023 he was a partner at Cannata, O'Toole, Fickes & Olson LLP.
As a commissioner, Fickes oversees criminal infractions, he stated.
"Based on my experience as a commissioner, I do not see a lot of evidence that any single judicial officer can make changes," he stated. "However, I do have priorities on which I hope to work if elected."
These include addressing the consequences of "an unprecedented 'brain drain' with the recent and anticipated future retirements of judges sitting in civil trial departments" by "looking at ways to attract more people to come and work for the court," and continuing his work on the court's Community Outreach and Elimination of Bias Committee.
"I have seen discrimination against LGBTQ+ individuals in the courtroom, administrative proceedings, judiciary, criminal system, or the legal profession. For example, a lawyer called me a 'faggot' in court early in my career," wrote Fickes. "When I was a new lawyer working for the district attorney's office, I noted that law enforcement had a very different attitude to sexual assault and domestic violence cases involving same-sex couples. I addressed these issues by working directly with supervisors and staff to increase awareness and sensitivity around issues related to the LGBTQ+ community."
Johnson
Johnson, who is heterosexual and lives in Oakland, was previously senior counsel for AT&T and WarnerMedia. Johnson, 61, has spent four years serving as a temporary judge for the Alameda County court, working on traffic, small claims, family, and civil harassment issues, and serves in a similar capacity for the Santa Clara County Superior Court.
"I have a passion for fairness, a passion for equity, a passion for impartiality," Johnson said in a phone interview with the B.A.R. "After having been a temp judge for five years, I find I can help a lot of people and do a lot of good public service, which if you've known my career, I'm very adamant about. I have an aptitude for it and a desire and a passion for it and I want to serve."
Johnson also serves as a court-appointed settlement conference attorney. When asked about the tightrope between campaigning but not being a policymaker, Johnson said that "it's not difficult for me because I take the canons of judicial ethics very seriously."
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."
"In no way, shape, or form am I going to comment on a political issue or align myself with a political candidate or officer," Johnson said. "It's an opportunity to explain as a judicial candidate what we can or cannot discuss during this campaign."
Johnson stated in his questionnaire that he will try to address discrimination.
"As an African American male, in my lifetime I certainly have experienced discrimination against me and against other African Americans in the courtroom, administrative proceedings, criminal system and in the legal profession," he stated. "There are sadly too many instances/scenarios to individually enumerate here. But my general practice is to call out the discriminatory conduct immediately to the person(s) who have engaged in that conduct; and address it in a professional manner making certain that the person(s) committing the discriminatory behavior clearly understand that their behavior is unacceptable to me/others, will not be tolerated and must be immediately corrected."
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