Editorial: Judicial candidate Fickes has a serious lapse in judgment

  • by BAR Editorial Board
  • Wednesday January 10, 2024
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Alameda County Superior Court candidate Mark Fickes. Photo: Courtesy the campaign
Alameda County Superior Court candidate Mark Fickes. Photo: Courtesy the campaign

Mark Fickes, a gay man who's a commissioner with the Alameda County Superior Court and a candidate for judge in March, committed a serious lapse in judgment last week when he told members of the Alameda County Democratic Central Committee, in response to a question from a committee member, that he voted for District Attorney Pamela Price in 2022. Price, who's also an elected member of the central committee, then promptly voted to endorse him. (Fickes secured the local Democratic Party's endorsement with 30 votes.) The whole episode reeks of a potential conflict of interest and raises questions about Fickes' and Price's impartiality should Fickes be elected.

Judicial candidates are not supposed to reveal their personal opinions. That may seem counterintuitive, but that's what the California Code of Judicial Ethics states. Judicial candidates are asked questions all the time, but that doesn't mean they should respond to them, according to the canon. And in fact, most of the time they don't. We've sent questionnaires to the judicial candidates in San Francisco and Alameda counties; several candidates invoked the judicial canons as the reason why they couldn't answer a question.

Fickes' opponent in the Alameda County race, attorney Michael Johnson, was asked the same question at the January 3 Alameda County Democratic Central Committee meeting. He declined to answer it. He told us it was an easy decision. "The judicial canons prohibit that kind of response," he said.

Fickes, as we report, has not responded to a message seeking comment.

That Fickes made such an admission is all the more puzzling because as a court commissioner, he's subject to the same rules as judges. Further, in 2020 he ran unsuccessfully for judge and is, thus, familiar with the canons of judicial ethics. 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."

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." Judicial candidates are not allowed to endorse in non-judicial races, they are not allowed to talk about how they might rule in a case.

Arguably, Price's tenure thus far has been controversial. While Fickes' vote for Price in 2022 had already happened, Price is currently under threat of a recall and county residents may vote on whether to retain her later this year. Questions surrounding the recall could wind up in court, although likely before Fickes would assume judicial duties if he's elected.

But more importantly, Price's deputy district attorneys appear in Alameda criminal courts all the time — that's their job. East Bay political observer Steven Tavares, who publishes his East Bay Insiders newsletter and first reported on the apparent quid pro quo, noted that any defense attorney would likely move to get a new judge assigned to their case should Fickes win election and be assigned to criminal court. After all, with Fickes acknowledging that he voted for the DA and with the attorneys Price oversees handling prosecutions, a defense lawyer could well worry that the fix is in, so to speak.

Impartiality is crucial for judges, and all judges, including those at the trial court level, must adhere to a higher standard. They should disclose any potential or real conflicts of interest and maintain their impartiality. They should exhibit judicial temperament. All of those are missing in Fickes' blunder. If he wins election, and Price remains the DA, he should not be assigned to the criminal division. That limits the options of the presiding judge, who makes those assignments, which is not helpful to him or her. In other words, Fickes is putting himself ahead of the good of the court.

This goes well beyond criminal assignments and the DA, however. More broadly, it speaks to Fickes' judgment or lack thereof. It points to a sense of desperation on his part that he will do or say anything to win a coveted endorsement. It's not a good look.

For her part, Price should have recused herself from voting at the county Democratic Party meeting. But she's not running for judge and, in this case, the onus was on Fickes.

Fickes' unforced error will be difficult, if not impossible, to overcome. We don't see that an apology will do much good, because the fact that he voted for Price is already out there. Receiving the Alameda County Democratic Party's endorsement by sucking up to the committee, and Price in particular, was a bone-headed decision, made all the more bewildering by Fickes declining to discuss it.

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